Jay M. Tyler v. Thomas J. Tyler et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO REARGUE (Motion # 312.00 and 315.00)

INTRODUCTION

This action alleging undue influence relating to the provisions of a trust established by Ruth Tyler and violation of obligations of the trustee has been pending in this court since February 2011.   On April 15, 2013 the defendants filed a motion for summary judgment as to the complaint by Jay Tyler (JT) and the cross complaint by Bruce Tyler (BT).  Following issuance of the court's decision on August 22, 2013, in which it granted summary judgment as to counts one through seven, JT, BT and the trustee Tatoian have moved to reargue their respective positions.   In order to determine whether any party is entitled to reargue the court has conducted a detailed review of the pleadings and memoranda submitted by all parties.

Practice Book section 11–12 sets forth the procedure required where a party seeks reargument.   As a threshold matter, parties are not entitled to reargument as a matter of right but must satisfy criteria established by our courts.   In the frequently quoted decision, Opuku v. Grant, 63 Conn.App. 686 (2001), the Appellate Court has stated, “The purpose of a reargument is ․ to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of the facts ․ It also may be used to address alleged inconsistencies in the trial court's memorandum of decision as well as claims of law that the movant claimed were not addressed by the court.   A motion to reargue § howeverŒ is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument.”  Id. at 698–99.   (Citations omitted.)   In general, a party seeking to reargue must establish the existence of newly discovered evidence which could not have been discovered earlier, which would have a controlling effect on the court's decision.   The motions to reargue raise numerous claims which the court will address individually below to determine whether reargument is warranted and, if so, whether any of the conclusions in its memorandum of decision require clarification or further orders.

As a preliminary matter, the court clarifies the following statements in its decision.   First, at page 21:  “In order to prevail, the plaintiff and cross plaintiff are required to prove each of the four elements of undue influence” Cross plaintiff states that he did not raise any claims related to undue influence.   In reality, while he does not claim the distribution in the trust is the product of undue influence, he does claim in his reply to the fifth special defense and in his memorandum in opposition on page 22 that the exculpatory provisions in the trust which protect the trustee from liability were the result of undue influence or that Ruth Tyler did not knowingly agree to them.   The cross plaintiff may have framed his complaint and arguments to avoid the provisions of section 13 of the trust but it is not necessary for the court to consider this issue at this time.   Second, at page 22:  “on the advice of her attorneys.”   This refers to advice from Thomas Tyler and Tatoian and the availability of Bruce based on his earlier role as her estate attorney should she need one, not to an additional attorney.   Third, at page 40:  “The cross plaintiff is not contesting the trust.”   The cross plaintiff is not contesting the distribution scheme in the trust, but he is challenging the exculpatory provisions as the product of undue influence or as provisions to which Ruth did not knowingly agree, as stated in his reply to the third and fifth special defense, and in his memorandum in opposition on page 22.   Finally, referring to page 41, Tatoian states in his affidavit that he never diversified the trust funds.   The plaintiff and cross plaintiff do not contest this, but they also had not yet filed replies to the special defenses which asserted C.G.S. 45a–204 as a special defense and Tatoian did not provide any independent evidence verifying that he did not diversify.   The court may disregard self-serving affidavits.   A party's conclusory statements, “in the affidavit and elsewhere ․ do not constitute evidence sufficient to establish the existence of disputed material facts.”  Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).   For this reason the court finds that the statements of Tatoian in his affidavit are insufficient to establish that he is entitled to summary judgment.

Issue 1. Motion to Reargue by Jay Tyler and Bruce Tyler as to Undue Influence of Thomas Tyler

Plaintiff claims that he is entitled to reargument because the court erroneously tried the factual issues relating to his claim of undue influence.   The court recognized in its decision the fundamental rule to be applied when deciding a motion for summary judgment, that it must construe evidence most favorably for the non-pleader.   Plaintiff has not submitted a single fact either in his initial opposition to the motion for summary judgment or in support of his motion to reargue that constitutes evidence which the trier of fact could consider and which it overlooked.   The crux of the plaintiff's claim is that his brother Thomas exerted undue influence over their mother Ruth Tyler whereby she changed the terms of her testamentary disposition from a provision which would have given him as her “neediest” son all of her property to the exclusion of the other heirs to a provision which divided her property equally with a deduction for certain lifetime distributions to Jay. Both sides submitted extensive arguments, ranging from trivial to vitriolic.   The court previously found that the plaintiff utterly failed to submit any facts based on his own direct knowledge or that of a reliable third party contemporaneous to the time when Ruth Tyler executed the trust which would be admissible to a trier of fact.   Plaintiff's own admission that he saw his mother only two or three times a year for holiday gatherings undermines any reliance on his claims regarding her susceptibility to undue influence.   Regardless of the plaintiff's reasons for not visiting his mother, the fact is that by his own testimony he did not do so on a regular or frequent basis and was therefore personally unfamiliar with her mental condition or other factors that he argues in support of his undue influence claim.   He cannot therefore, claim to have any knowledge relating to the claims which he has made in this case.   He has furthermore not presented any new evidence or legal authority in his motion to reargue.   Throughout all of the plaintiff's submissions, he relies extensively on hearsay, from newspaper articles and non-party documents which although they present Thomas as unethical and despicable, are nevertheless inadmissible.   The remainder of Jay's opposition to the motion is a litany of past grievances against Thomas, which, even if true, do not satisfy the legal standard required for facts to oppose a motion for summary judgment.   Similarly, from the excerpt of Bruce's deposition, he acknowledges that Ruth had considered a trust for some 30 years before she passed away although she did not actually create this so-called Medicare trust on her own.   Nothing in Bruce's testimony supports or even suggests undue influence regarding the 1999 will or the 2004 trust.

The court relied on the following undisputed facts:  According to the testimony of Bruce, in her eighties, Ruth, who had been “very independent of mind, knew her mind and was quite intelligent,” ceded decision making in the marriage to her husband.   Making decisions after his death was a “little overwhelming for her, so that affected her psychologically.”   Like Jay's assertions, Bruce's assessment of his mother's mental state is unsupported by any facts or direct examples.   That Ruth also exhibited physical signs of aging including diminished vision and hearing and Bruce and Russell took turns staying overnight so she would not be alone may be factually true but do not support the claim of undue influence either by themselves or in conjunction with any other fact urged by Bruce and Jay on the court.   In August 2004 Ruth moved into an assisted living facility known as Suffield by the River.   Both Bruce and Jay's statements are indefinite as to time and vague as to description.   In contrast, the sworn testimony of Celia Moffie, the assisted living facility employee who administered the mental aptitude test to Ruth on her admission in August 2004 and observed her daily interacting with staff, medical providers and other residents presents a woman who was alert, interested in her social life, capable of managing her needs with the physical support provided by the facility and who generally flourished in that surrounding.   Ms. Moffie's testimony was direct, factual and reflected Ruth's condition, visible to the general community.   It is also the only evidence relevant to the time period which must be considered to determine the plaintiff's undue influence claims, the establishment of the trust in 2004.

Neither Jay nor Bruce presented a single fact in their original opposition to the motion for summary judgment which could be considered to contradict the testimony of Ms. Moffie, the only disinterested third party.   Even if true, their past grievances are so vague and remote that they have no bearing on the claim that Ruth Tyler's decisions regarding the 1999 will and the 2004 trust were the product of undue influence.

In summary, the court did not try the undue influence claims.   Rather, the plaintiff Jay Tyler and the cross plaintiff Bruce Tyler failed to produce any evidence which could reasonably be submitted to a jury.   Neither party has produced any evidence in support of the motions to reargue which was not previously available or cited any legal principle which the court has overlooked as required for the court to permit reargument.   There is no basis for the court to reconsider its decision regarding the claims of undue influence.   The motions to reargue as to the court's decision relating to the undue influence counts of the complaint and counterclaim is denied.

Issue 2. Whether the Court Was Required to Consider Prior Replies

Jay Tyler and Bruce Tyler also claim that the court was required to consider the plaintiffs and cross plaintiff's replies to the defendants' special defenses, (docket entry Nos. 155 and 213) even though the plaintiff and cross plaintiff subsequently filed amended complaints and the defendants filed answers with those special defenses and additional special defenses.

Multiple amendments and cross filings by the parties have unnecessarily complicated a clear review of claims as they relate to the pleadings in effect at the time of filing and then later, at the time of argument on the motion.   The practice book provides that after a pleading is amended, “[i]f the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading.”   Practice Book § 10–61.¹  “The voluntary filing of an amended complaint operates as a withdrawal of the prior complaint, and, thereafter, the earlier complaint, though remaining in the files and constituting part of the history of the case, can furnish no basis for a judgment, nor can any previous ruling on it be made a subject of appeal.”  Connecticut Bank of Commerce v. Giordano, 67 Conn.App. 79, 81, 787 A.2d 9 (2001), cert. denied, 259 Conn. 929, 793 A.2d 253 (2002) (Plaintiff filed an amended complaint, then withdrew it;  court held that there was no valid complaint as amended complaint withdrew initial complaint).   Several judges of the Superior Court have held that, when a party moves for summary judgment, then the opposing party files an amended complaint, the judge should apply the summary judgment motion to the amended complaint.   Nargi v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV–98–0419562–S, n.2 (February 4, 2004, Licari, J.);   Orozco v. Groll, Superior Court, judicial district of New Britain, Docket No. CV–00–0499892–S, n.1 (January 29, 2001, Shapiro, J.).   None of these is entirely dispositive of the issue.   The practice book applies to pleadings filed by the adverse party, but in the present case the replies were filed by the same party that amended its complaint.   The court definitely must focus on only the most recently filed complaint, but the law is unclear as to whether the reply associated with the earlier complaint was still active because the plaintiff and cross plaintiff had not yet filed new replies to the new answers and special defenses.

However, whether the court should have considered the replies, the next question in the context of the motions to reargue is whether they would have any impact on the court's decision.  “[D]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred ․ [U]nadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact.”  (Internal quotation marks omitted.)  Terracino v. Gordon and Hiller, 121 Conn.App. 795, 805, 1 A.3d 97 (2010).  “We are unfamiliar with any rule that prevents the court from rendering summary judgment on a complaint, cross complaint or counterclaim simply because of the existence of one or more special defenses.   To the contrary, it is appropriate for a court to render summary judgment in favor of a plaintiff when the special defenses asserted by a defendant are either not legally viable or do not present a genuine issue of a material fact.   See, e.g., Webster Bank v. Oakley, 265 Conn. 539, 830 A.2d 139 (2003).”  Kazlon Communications, LLC v. American Golfer, Inc., 82 Conn.App. 593, 596, 847 A.2d 1012 (2004).

The Practice Book provides for two responses to a defendant's special defenses, in Practice Book §§ 10–56 and 10–57.  Practice Book § 10–56 states that “The plaintiff's reply pleading to each of the defendant's special defenses may admit some and deny others of the allegations of that defense, or by a general denial of that defense put the defendant upon proof of all the material facts alleged therein.”  Practice Book § 10–57 states that “Matter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply.   Such a reply may contain two or more distinct avoidances of the same defense or counterclaim, but they must be separately stated.”   If the plaintiff and cross plaintiff's replies are merely replies that admit or deny the special defenses, they have no effect on the court's ruling.   The defendants were required to submit evidence demonstrating that there was no factual dispute as to the special defenses.   In effect, the court assumed that the plaintiff and cross plaintiff denied all the special defenses.   If, however, the replies are construed as matter in avoidance, the court should consider whether they are legally sound and whether they present a genuine issue of material fact that the defendants did not provide evidence regarding.

The plaintiff submitted replies to the first six special defenses;  the cross plaintiff submitted replies to the first through ninth special defenses.   In its memorandum of decision, the court stated that the third, fourth, seventh, eighth, ninth, twelfth, and thirteenth special defenses were of import to its decision.

The third special defense states that any statutory obligations of the Trustee were explicitly waived by the Trust or do not apply.   The plaintiff's and cross plaintiff's replies claim that Ruth did not knowingly waive these obligations, therefore the waiver contained in the Trust was ineffective.   The court could construe this as presenting matter in avoidance.   In their memorandum in opposition to the motion for summary judgment (255) on page 22, the plaintiff and cross plaintiff claimed that the provisions waiving the statutory obligations were the product of undue influence and therefore ineffective.   The court considered and rejected this argument on page 40 of the memorandum of decision.   The crux of the claim of undue influence in this case is the change in the distribution provisions relating to Jay Tyler.   Neither side presented credible evidence on the issue of whether Ruth knowingly signed the trust.   There is no basis for raising it at this late stage in the case, only weeks before trial.   The court's decision also relied on the statutory protection for Trustees contained in General Statutes § 45a–204 which sates, “Trust funds received by ․ trustees ․ may be kept invested in the securities received by them, unless it is otherwise ordered by the Court of Probate or unless the instrument under which such trust was created directs that a change in the investments shall be made, and the fiduciaries thereof shall not be liable for any loss that may occur by depreciation of said securities.”   This provides a separate ground for granting the motion for summary judgment as to Tatoian's failure to diversify the Trust and violation of the prudent investor rule.

The fourth special defense specifically references paragraph 5(l) of the Trust, which provides that the Trustee shall not be liable for any mistake or error of judgment other than for willful misconduct.   The replies reiterate that Ruth did not knowingly agree to this provision, and claim without any supporting factual allegations that the Trustee's failure to diversify did constitute willful misconduct.   The court did not consider the issue of willful misconduct because no party briefed it.   Rather, the arguments by the parties and the decision by the court were premised on the statutory protection provided by General Statutes § 45a–204.

The seventh special defense states that the Trustee has no obligation to provide accountings to anyone other than Ruth prior to Ruth's death;  the eighth special defense states that the Trustee was only obliged to provide accountings to beneficiaries then entitled to receive income.   The cross plaintiff's reply denies that the Trustee was not obligated to provide the plaintiff and cross plaintiff with accountings, but also asserts that in fact the Trustee did not provide accountings to Ruth. The issue of whether the Trustee provided accountings to Ruth was not presented in the motion for summary judgment, nor is it mentioned in any of the complaints.   It is unclear how this alleged failure to provide accountings to Ruth would affect any of claims of the plaintiff and cross plaintiff.   Insofar as the seventh and eighth special defenses relate to the trustee's obligation to provide accounting to income beneficiaries as a matter of law and pursuant to the terms of the subject trust, this issue is addressed more fully below.

The ninth special defense asserted that under paragraph 5(a) of the Trust, the Trustee has broad discretion in managing the Trust, specifically in having no obligation to diversify.   The cross plaintiff's reply merely denied this.   As a denial, it is irrelevant.   The court placed the burden of proving the absence of any dispute as to the material facts for special defenses on the defendants.

In summary, the matters in avoidance raised by these replies, which were not properly pleaded as such and which the plaintiff and cross plaintiff did not mention in their memorandum in opposition, would be that Ruth did not knowingly waive the Trustee's obligations, that the Trustee's mismanagement amounted to willful misconduct, and that Ruth did not receive accountings.   The court's decision to grant summary judgment regarding the Trustee's management of the Trust relied on General Statutes § 45a–204.   Moreover, it is unclear whether the claim that Ruth did not knowingly waive the obligations is separate from the undue influence claim.   The motions to reargue on the basis of the claim that the court was obligated to consider the replies to the special defenses in this case are denied.

Issue 3. Entitlement of Plaintiff and Cross Plaintiff to Accounting by Trustee

The third reason asserted in support of the motion to reargue is that the court misinterpreted the language of the trust document and/or misapplied the law as to whether the trust language provides the plaintiff and cross plaintiff with a right to accountings or alternately, whether absent any language in the trust, the plaintiff and cross plaintiff would be entitled to accountings as a matter of law.

Statutory Right to Accountings

Bruce Tyler has alleged that Tatoian is liable pursuant to Conn. Gen.Stat. 45a–541 (the prudent investor act) and/or Conn. Gen.Stat. 45a–542 ((principal and income act).   Under the standard definitions of trust beneficiaries in the Connecticut General Statutes, Ruth would be considered an income beneficiary and the Tyler brothers would be considered remainder beneficiaries.  “Definitions As used in sections 45a–542 to 45a–542ff, inclusive:  ․ 2).  “Beneficiary” includes, in the case of a decedent's estate, an heir, legatee and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary ․ (5) “Income beneficiary” means a person to whom net income of a trust is or may be payable ․ (11) “Remainder beneficiary” means a person entitled to receive principal when an income interest ends.   The General Statutes provide for the right of remainder beneficiaries to seek an accounting through the probate court in General Statutes 45a–175.²  In addition, the General Statutes provide for periodic rendering of accounts to the probate court in General Statutes § 45a–177 ³ and provide that the probate court may provide notice of the filing of accounts to interested parties in General Statutes § 45a–178.⁴

Also, the Supreme Court has recognized that holders of a remainder interest in a trust do have a property interest and a right to seek accountings:  “We have stated previously that “[t]he defining characteristic of an expectancy is that its holder has no enforceable right to his beneficence ․ The decedent's grandchildren in the present case hold contingent remainders pursuant to the trust established by the decedent's will.   As contingent remaindermen, they have the right to bring an action against the trustee for breach of trust and for an accounting ․ Termination of the trust is impossible without the consent of the grandchildren ․ Furthermore, the remainder interests of the grandchildren are alienable and may be reached by their creditors ․ All of these factors demonstrate that the decedent's grandchildren have enforceable rights with regard to their contingent remainder interests in the trust.   The contingent remainders held by the decedent's grandchildren therefore are not expectancies but, instead, are presently existing property interests.”   (Citations omitted, internal quotation marks omitted.)  Gaynor v. Payne, 261 Conn. 585, 592–93, 804 A.2d 170 (2002).

Several judges of the Superior Court have considered trust provisions which required accountings to be sent to beneficiaries, but have not stated that any law required accountings to be sent directly to beneficiaries, rather than to the probate court.   In Hall v. Taylor, Superior Court, judicial district of New Haven, Docket No. CV–08–4009225–S (October 1, 2009, Fischer, J.) [48 Conn. L. Rptr. 582], the court interpreted a trust section which specifically stated that income beneficiaries alone would receive accountings.   The court did not consider the status of remainder beneficiaries and did not mention any right to accountings aside from where provided by the trust and where provided by the General Statutes, as discussed earlier.   See also Kidder v. Anderson, Superior Court, judicial district of New London, Docket No. CV–10–6005996–S (May 31, 2013, Cosgrove, J.) [56 Conn. L. Rptr. 173] (trust itself required accountings to beneficiaries, no mention of law requiring accountings to beneficiaries);  Ramondetta v. Amenta, Superior Court, judicial district of Hartford, Docket No. CV 03 0825102 (November 15, 2004, Hennessey, J.) (same);  Stuart v. Stuart, Superior Court, judicial district of Stamford–Norwalk, Complex Litigation Docket, Docket No. X08–CV–02–0193031, (June 28, 2004, Adams, J.) (37 Conn. L. Rptr. 367), aff'd, 112 Conn.App. 160, 962 A.2d 842 (2009), rev'd in part, 297 Conn. 26, 996 A.2d 259 (2010) (same).

The Third Restatement of the Law of Trusts states that Trustees have a duty to notify a representative sample of beneficiaries, defined as a “person for whose benefit property is held in trust”;  1 Third Restatement of the Law Trusts § 3(4);  and to furnish accountings on request:  “Duty to Furnish Information to Beneficiaries.  (1) Except as provided in § 74 (revocable trusts) or as permissibly modified by the terms of the trust, a trustee has a duty:  (a) promptly to inform fairly representative beneficiaries of the existence of the trust, of their status as beneficiaries and their right to obtain further information, and of basic information concerning the trusteeship;  (b) to inform beneficiaries of significant changes in their beneficiary status;  and (c) to keep fairly representative beneficiaries reasonably informed of changes involving the trusteeship and about other significant developments concerning the trust and its administration, particularly material information needed by beneficiaries for the protection of their interests.  (2) Except as provided in § 74 or as permissibly modified by the terms of the trust, a trustee also ordinarily has a duty promptly to respond to the request of any beneficiary for information concerning the trust and its administration, and to permit beneficiaries on a reasonable basis to inspect trust documents, records, and property holdings.”   3 Third Restatement of the Law Trusts § 82.  “Duty to keep records and provide reports:  A trustee has a duty to maintain clear, complete, and accurate books and records regarding the trust property and the administration of the trust, and, at reasonable intervals on request, to provide beneficiaries with reports or accountings.”   3 Third Restatement of the Law Trusts § 83.

Right to Accountings per Section 8(b) of the Trust

In their memorandum of law in support of their motions for summary judgment the defendants claim that the beneficiaries did not have any right to accounting from the trustee until after the death of Ruth Tyler.   On Page 28 of their memorandum, the defendants state that the Trustee was only required to furnish accountings to current income beneficiaries, and that revealing the terms of the Trust would be a violation of the attorney-client relationship.   The plaintiff and cross plaintiff claim that Section 8(b) of the Trust should be read to require accountings to all adult beneficiaries.   Section 8(b) states in pertinent part that “[t]he Trustee shall render an account at least once each twelve months to each adult beneficiary and to the natural or legal guardians, if any, of each minor or otherwise legally disabled beneficiary then receiving or entitled to receive income hereunder.   The account shall show the receipts, disbursements and distributions of principal and income since the last accounting, and the assets on hand.”   The plaintiff and cross plaintiff submitted a diagram of this sentence in paragraph 8(b) to assert that the phrase “then receiving or entitled to receive income hereunder” only refers to minor or disabled beneficiaries.   Although inserting a comma before “then receiving or entitled to receive income hereunder” would make it clear that the phrase refers to both adult beneficiaries and to minor or disabled beneficiaries, the only logical interpretation of this statutory provision is that the legislature intended the phrase to apply to both adult and minor/disabled beneficiaries, thereby ensuring equal treatment to both.

That both categories of beneficiaries must be treated the same does not fully address the issue of whether the beneficiaries were entitled to trustee accountings in this case.   The plaintiff also asserts that while he was not entitled to receive income at Ruth's death, he would earlier have been entitled to do so because the trust corpus was larger and therefore his share would be larger than his alleged debt.   This argument ignores the undisputed fact that by the terms of the trust the only beneficiary entitled to receive income prior to Ruth's death was Ruth herself.

The cross plaintiff now asserts that the accountings provided by Tatoian upon Ruth's death were not proper accountings.   They did not “show the receipts, disbursements and distributions of principal and income since the last accounting, and the assets on hand.”   Neither side argued this issue in the motion for summary judgment and associated filings.   The plaintiff and cross plaintiff claim that having the accountings during Ruth's life would have allowed them to require diversification of the Trust assets and thereby prevented the large loss which occurred.

In addition, in most cases, trustee accounting requests and related matters are addressed by the probate court.   Without any information from either side, this court had presumed that the same process had been followed with respect to the subject trust.   In fact, the motions to reargue acknowledge that the beneficiaries received some accountings from the trustee presumably pursuant to proceedings in the Greater Windsor Probate Court.   However, it has now been disclosed to the court in the course of the motion to reargue that the parties initiated litigation in that court on the same issues in this case, i.e., undue influence and trustee negligence seeking removal of the trustee and voiding of the trust.   Exhibit A to the plaintiff and cross plaintiff's motions to reargue is a decision by Judge Burke following a trial conducted on December 14, 2012.   From this decision it appears that following commencement of this lawsuit by Jay Tyler in superior court on January 28, 2011, the trustee Tatoian filed an application in the Greater Windsor Probate Court seeking approval of his accountings and proposed distribution.   The probate court denied Jay Tyler's motion to dismiss, accepted jurisdiction of the inter vivos trust, approved the accounting and the proposed distribution.   Jay and Bruce filed a de novo appeal in the superior court for the judicial district of Tolland at Rockville.   Based on the provisions of Gen.Stat. 45a–98a(a) the superior court concluded that the probate court lacked jurisdiction over the trustee's application and vacated the probate court's decree.

Although under the language of the appellate court in Opoku, supra, Judge Burke's order was discoverable, and thus does not provide a basis for reargument, continuing to apply Opoku, the court finds that it is a “decision ․ which would have a controlling effect” on the court's decision.   Because this may be a basis for reargument, the court has considered the arguments of the parties and its decision on the sole issue of the trustee's obligation to provide annual accountings to the remainderman beneficiaries.   Having reviewed the law relating to the rights of beneficiaries not previously cited to the court as applicable to the provisions of the trust instrument and taken judicial notice of the decision of the Superior court in D.N. TTD CV 116003303, the court has determined that the pleadings raise issues of fact which require consideration by the trier of fact.   The court notes that during an earlier oral argument in this case, it was represented that there was a parallel action pending in the probate court.   Based on this understanding, the court assumed that the probate court was addressing administrative matters such as the parties claims for annual accounting and any other related issues.   As of the filing of the motion to reargue, the court has learned that this was not the case.   The parties should have disclosed the above decision the time they submitted their summary judgment arguments.   As a result of their failure to disclose the decision, there was a decision and principle of law which was overlooked which may have had a controlling effect on the court's decision on this issue.   However, further argument is not warranted because the parties have briefed their positions extensively and the court is able to consider the effect, if any of Judge Burke's decision that the probate court lacked jurisdiction on the pending issues in this case without argument.

The court concludes that based on the evidence presented, 1) the subject Trust provision is unclear 2) there is no statement in the law that remainder beneficiaries do not have a right to annual accountings from the trustee, and 3) remainder beneficiaries do have a right to petition the probate court for accountings.   These findings raise issues of fact which require further evidence and are therefore appropriate for submission to the trier of fact.

Based on the above analysis, the court therefore vacates its order granting summary judgment as to the sole issue of the trustee's obligation to provide trust accounting to the remainder beneficiaries.   Although the court is aware of the rule that a motion to reargue may not be used as a second bite of the apple, the circumstances of this case merit the court's consideration.

4. As a final issue the court addresses the plaintiff and cross plaintiff's erroneous challenge to the court's reliance on the deposition testimony of Celia Moffie.   The Moffie deposition was certified.   The notary public signed the certification page, noting that she was a notary public permitted to administer an oath and that Celia Moffie appeared before her and was duly sworn.

“Therefore, before a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.   The requirement of authentication applies to all types of evidence, including writings ․ Conn.Code Evid. § 9–1(a), commentary.   Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.”  Gianetti v. Anthem Blue Cross and Blue Shield of Connecticut, 111 Conn.App. 68, 73, 957 A.2d 541 (2008) (trial court properly refused to consider exhibits that were not properly authenticated).  “[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment ․ Practice Book § [17–45], although containing the phrase including but not limited to, contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable ․ [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment.”  (Internal quotation marks omitted.)   Nash v. Stevens, 144 Conn.App. 115 (2013).

CONCLUSION

For the reasons stated above, the court denies the motions to reargue, except as to the sole issue of whether the trustee was obliged under section 8(b) of the trust to provide annual accounting to the remainderman beneficiaries of the trust.   Having considered the written arguments of the parties and determining that there is nothing further which requires submission to the court, the court reverses its prior decision granting summary judgment on this sole issue.

SO ORDERED.

SOMMER, J.

FOOTNOTES

FN1. Practice Book § 10–61:  “When any pleading is amended the adverse party may plead thereto within the time provided by Section 10–8 or, if the adverse party has already pleaded, alter the pleading, if desired, within ten days after such amendment or such other time as the rules of practice, or the judicial authority, may prescribe, and thereafter pleadings shall advance in the time provided by that section.   If the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading.”.  FN1. Practice Book § 10–61:  “When any pleading is amended the adverse party may plead thereto within the time provided by Section 10–8 or, if the adverse party has already pleaded, alter the pleading, if desired, within ten days after such amendment or such other time as the rules of practice, or the judicial authority, may prescribe, and thereafter pleadings shall advance in the time provided by that section.   If the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading.”

FN2. “Jurisdiction of accounts of fiduciaries ․ (c)(1) Any beneficiary of an inter vivos trust may petition a court of probate having jurisdiction under this section for an accounting by the trustee or trustees.   The court may, after hearing with notice to all interested parties, grant the petition and require an accounting for such periods of time as it determines are reasonable and necessary on finding that:  (A) The beneficiary has an interest in the trust sufficient to entitle him to an accounting, (B) cause has been shown that an accounting is necessary, and (C) the petition is not for the purpose of harassment ․ (3) As used in subdivision (1) of subsection (c) of this section, ‘beneficiary’ means any person currently receiving payments of income or principal from the trust, or who may be entitled to receive income or principal or both from the trust at some future date, or the legal representative of such person.”   General Statutes § 45a–175..  FN2. “Jurisdiction of accounts of fiduciaries ․ (c)(1) Any beneficiary of an inter vivos trust may petition a court of probate having jurisdiction under this section for an accounting by the trustee or trustees.   The court may, after hearing with notice to all interested parties, grant the petition and require an accounting for such periods of time as it determines are reasonable and necessary on finding that:  (A) The beneficiary has an interest in the trust sufficient to entitle him to an accounting, (B) cause has been shown that an accounting is necessary, and (C) the petition is not for the purpose of harassment ․ (3) As used in subdivision (1) of subsection (c) of this section, ‘beneficiary’ means any person currently receiving payments of income or principal from the trust, or who may be entitled to receive income or principal or both from the trust at some future date, or the legal representative of such person.”   General Statutes § 45a–175.

FN3. “(a) All conservators, guardians, persons appointed by the Court of Probate to sell land of minors and trustees, including those entrusted with testamentary trusts unless excused by the will creating the trust, shall render periodic accounts of their trusts signed under penalty of false statement to the Court of Probate having jurisdiction for allowance, at least once during each three-year period and more frequently if required to do so by the will or trust instrument creating the trust.   Periodic accounts for filing only may be submitted to the court at any time during each three-year period.   Upon receipt of a periodic account, the court shall cause notice of it and of its availability for examination at the court to be given in such manner and to such parties as it deems reasonable.   Any such party may apply to the court for a hearing on the account.   If an application for such a hearing is not received by the court from a party in interest within the time stated in the notice, the periodic account will be filed without hearing thereon and without allowance or disallowance thereof and shall not be recorded.   At the end of each three-year period from the date of the last allowance of a periodic account, or upon the earlier receipt of a final account, there shall be a hearing on all periodic accounts not previously allowed, and the final account, if any, in accordance with sections 45a–178 and 45a–179.“(b) Each such periodic account shall include an inventory of the trust estate showing fully how the principal of the fund is invested and the items of income and expenditure.   If there has been no change in the identity of the items comprising the principal of the fund since the last account which has been accepted and approved, it shall not be necessary to include an inventory of the trust estate.“(c) If the estate held by any person in any such fiduciary capacity is less than two thousand dollars, or, in the case of a corporate fiduciary under the supervision of the Banking Commissioner or any other fiduciary bonded by a surety company authorized to do business in this state, ten thousand dollars, such fiduciary shall not be required to render such account unless so ordered by the court.”  General Statutes 45a–177..  FN3. “(a) All conservators, guardians, persons appointed by the Court of Probate to sell land of minors and trustees, including those entrusted with testamentary trusts unless excused by the will creating the trust, shall render periodic accounts of their trusts signed under penalty of false statement to the Court of Probate having jurisdiction for allowance, at least once during each three-year period and more frequently if required to do so by the will or trust instrument creating the trust.   Periodic accounts for filing only may be submitted to the court at any time during each three-year period.   Upon receipt of a periodic account, the court shall cause notice of it and of its availability for examination at the court to be given in such manner and to such parties as it deems reasonable.   Any such party may apply to the court for a hearing on the account.   If an application for such a hearing is not received by the court from a party in interest within the time stated in the notice, the periodic account will be filed without hearing thereon and without allowance or disallowance thereof and shall not be recorded.   At the end of each three-year period from the date of the last allowance of a periodic account, or upon the earlier receipt of a final account, there shall be a hearing on all periodic accounts not previously allowed, and the final account, if any, in accordance with sections 45a–178 and 45a–179.“(b) Each such periodic account shall include an inventory of the trust estate showing fully how the principal of the fund is invested and the items of income and expenditure.   If there has been no change in the identity of the items comprising the principal of the fund since the last account which has been accepted and approved, it shall not be necessary to include an inventory of the trust estate.“(c) If the estate held by any person in any such fiduciary capacity is less than two thousand dollars, or, in the case of a corporate fiduciary under the supervision of the Banking Commissioner or any other fiduciary bonded by a surety company authorized to do business in this state, ten thousand dollars, such fiduciary shall not be required to render such account unless so ordered by the court.”  General Statutes 45a–177.

FN4. “The Court of Probate shall direct what notice, if any, shall be given to the parties in interest of the filing of any account described in section 45a–177, and of the hearing thereon, and may adjust and allow the account.   The court may make any order necessary and proper to secure the execution of the duties of such fiduciary, subject to appeal as in other cases.”  General Statutes 45a–178..  FN4. “The Court of Probate shall direct what notice, if any, shall be given to the parties in interest of the filing of any account described in section 45a–177, and of the hearing thereon, and may adjust and allow the account.   The court may make any order necessary and proper to secure the execution of the duties of such fiduciary, subject to appeal as in other cases.”  General Statutes 45a–178.

Sommer, Mary E., J.