Steven Embersits v. Lucinda Embersits, Executrix of Estate of John Embersits (2013)

MEMORANDUM OF DECISION

This case is an appeal from the decision of the Probate Court for the District of Madison which ordered a June 24, 1982 will of John Embersits to be admitted to probate by a decree of that court dated October 20, 2009.

The petitioner, Steven Embersits, who is the son of John Embersits, petitioned the Probate Court for discovery regarding the potential annulment of orders passed under the 1982 will.   Probate Court held a hearing on the petition on December 6, 2011 and the plaintiff claims the court allowed him “very limited discovery.”   On December 30, 2011 the Probate Court, according to the plaintiff, “issued an order on the petition which upheld the October 20, 2009 order admitting the 1982 will and found no evidence was presented regarding the existence of another will.”

The appeal complains that the Probate Court, as indicated, gave only limited discovery thus thwarting the plaintiff's attempt to establish the existence of another will.   In two paragraphs it notes the Probate Court limited his discovery to those people present in the courtroom and limited the plaintiff to calling the same witnesses to testify and further deprived the plaintiff of the opportunity to subpoena witnesses.   A trial de novo is sought of the Probate Court's actions and the plaintiff requests in his post-trial brief that he should be allowed to take additional discovery particularly of a law firm where the lawyer now representing the Estate, Attorney Richard Siegal, worked in the past and of Attorney Siegal who prepared the 1982 will and continued to represent John Embersits for many years thereafter.

The predicate to any argument that the discovery provided in Probate Court was somehow not complete and that additional discovery is needed or, better put, warranted, is based on two interrelated premises.   One premise is that the information or evidence available to the plaintiff through the discovery so far completed and other evidence or information available to the plaintiff from any other sources than discovery tends to establish a reasonable likelihood that the 1982 will was superseded by a new will for John Embersits, thus leading to a supportable contention that there should be additional discovery.

A second premise, as will be discussed, is that discovery procedures in Superior Court hearing this appeal have been properly followed therefore warranting additional discovery which, if the plaintiff were to prevail, would require this court to conclude that the trial dates of March 26 and 27, 2013 were premature and the plaintiff should receive a continuance so as to permit additional discovery.   The court will make some observations in this regard regarding discovery procedure in a probate appeal to Superior Court.   The complaint itself requests “a trial de novo” on all matters decided by the Probate Court citing several cases supporting his right to such a trial in Superior Court.   As said in Kerin v. Stangle, Administrator, 209 Conn. 260, 264 (1988):  “The function of the Superior Court in appeals from Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo.”   The discovery of a later will of Mr. Embersits would necessarily negate the effective application of the 1982 will admitted by Probate Court in 2009.

What discovery process was available to the plaintiff once this appeal was filed in Superior Court?  Section 13–2 of the Practice Book explicitly says that the discovery provisions of Chapter 13 of the Practice Book apply in any appeal from Probate Court.   The issue of whether additional discovery should be allowed depends on the discovery permitted under our Superior Court rules of discovery and whether those rules have been complied with and whether any discovery provided or not provided as requested suggests the need for additional discovery.  Practice Book Section 13–6 discusses a parties right to submit interrogatories, Practice Book Section 13–9 allows for requests for production.

Let us review the discovery provisions available to a party appealing from Probate Court to the Superior Court.   When an appeal is filed in Superior Court from Probate Court Practice Book Section 13–26 provides for the taking of depositions at any time after the commencement of litigation, which would be the return date.   The court can order the deposition of any person including a party.

Also Section 13–28, in compliance with Section 52–148c of the General Statutes provides for the appointment of a commission by a court of this state to take the deposition of a resident of another state.   Depositions in this case were taken of two individuals in Florida.   As noted in Struckman v. Burns, 205 Conn. 542, 552 (1987), “once the commission is granted by the court in this state, a subpoena can be obtained in the proposed deponent's state to force the deponent to attend a deposition in his (sic) state.”

Subsection (c) of Practice Book § 13–28 states that:  “A subpoena issued for the taking of a deposition may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain materials within the scope of the examination permitted by Sections 13–2 through 13–5.”   In this state where a party fails to comply with any of the terms of a subpoena for a deposition such as an order to produce certain documents and papers for use at the deposition, subsection (f) provides for the imposition of sanctions.   It is also true that subsection (f) provides that where a deposition is taken in a foreign state concerning a matter, such as a probate appeal, pending in our state, if there is a failure to comply with the terms of a subpoena regarding the production of documents a court in the judicial district where the subpoenaed person resides may issue a capias and even incarcerate such person if he or she refuses to comply with a subpoena duces tecum.

Theoretically, a Connecticut court cannot order a subpoena duces tecum to be executed in a foreign state, cf Falacia v. Advanced Tenants Services, Inc., 235 FRD5, 11 (2006).   But as Struckman suggests and § 13–28 assumes, a court in a foreign state issues a subpoena pursuant to § 52–148c of the general statutes and this would include the power, in conjunction with a subpoena, to issue a subpoena duces tecum for the production of documents.   Insofar as a foreign state, such as Florida in this case, has consented to issue the subpoena it follows that “a court in which an action is pending has the inherent power to issue a subpoena duces tecum to any person who can be a witness,” 81 Am.Jur.2d “Witnesses,” Section 21, page 75, American Lithographic Co. v. Werckmeister, 221 U.S. 603, 610 (1911);  Vaugh v. Broadfoot, 149 SE.2d 37, 40 (N.C., 1966).   In other words, when a state such as Florida accepts the commission and issues a subpoena in its state so that the deposition can go forward it in effect agrees to the effective functioning of the deposition procedure which may require the issuance of a subpoena duces tecum—a reciprocal course of action to rights our state would give to Florida litigants seeking to depose a resident of our state.  Reedy v. Safeco Insurance Co., 721 So.2d 803 (Fla.App.1993), discusses Florida's statutory scheme providing for depositions pursuant to a foreign state's commission to depose a Florida resident and the issuance of a subpoena duces tecum for such depositions.

I.

The two premises previously discussed are, for the purposes of this case directly related.   If there is little or no indication that from the evidence before the court that a new will after the 1982 will was made, then it can be said that additional discovery would be pointless and unfair since it would further delay the closing of the estate.

If there is strong evidence of the existence of a new will then additional discovery should be permitted but with the caveat that such additional discovery should not be allowed if discovery remedies, as provided for in Chapter 13 of the Practice Book were not taken advantage of or resorted to in a timely manner once the appeal was filed in Superior Court.

What evidence exists or what inferences may be drawn from evidence that has been admitted that there was a new will created after, and supplanting the 1982 will?

(a)

Steven Embersits testified first.   He stated that in July 1999 a meeting was held at the Madison Beach Club to discuss the Embersits Family Trust which his father had set up.   At the meeting were his father John Embersits, his stepmother Lucinda Embersits, who is the executor of his father's will, two children of his father by his first marriage Leslie and Jeffrey Embersits and two trustees of the trust, Stephen Caldwell and Bob Cushman.   Attorney Richard Siegal was present.   Attorney Siegal prepared the 1982 will and was John Embersits's lawyer from the early 1980s to approximately 2009.   Steven Embersits testified that on one of the days of this two-day meeting Attorney Siegel made a presentation to the effect that over the last 12 or 18 months he had “totally” redone John Embersits's estate plan “including a new will.”   He did not recall his father saying anything when this statement was made.   When he testified Attorney Siegal denied making such a statement.   Steven Embersits's father prepared the agenda for the meeting and delivered the agenda to his son.   The agenda (Ex. 13) makes no specific mention of a will.   Steven Embersits's brother and sister live in California and Australia respectively but no deposition testimony was presented supporting Steven Embersits's claim.   Mr. Caldwell and Mr. Cushman were not called to testify—steps which could have been taken in the course of this litigation which commenced some fourteen months before the date on which Steven Embersits testified on March 26, 2013.

On direct Steven Embersits also testified his father had told him he had made out a new will (i.e. after the 1982 will) but upon cross examination he answered “no” to a question by the attorney for Lucinda Embersits.  “Q. Okay. And he never told you that he had executed any will after the will that's been admitted into probate, correct?”

But he went on to testify that his father said in case of his demise, he, Steven Embersits, would be the person in charge of his business.   The argument advanced is that the 1982 will would not accomplish this.   What seems odd, to the court at least, is that two intelligent and sophisticated people under these circumstances would not have said father to son—son to father how can I be in charge given the terms of the 1982 will—i.e. did you make a new will, father to son, I changed the terms of the 1982 will.   No testimony to this effect was presented.   But it is also true that the plaintiff, Steven Embersits, testified that his father said when “he's gone I was to be in his place, in his shoes, that's the way he frequently phrased it.”   And he never mentioned the executors of the 1982 will after the business my father set up was sold.

But on cross examination or it was brought out that John Embersits never told the plaintiff explicitly that the plaintiff would be the executor of his estate.   The father's business, FRM, was run by him until he sold his interest to the John F. Embersits Family Trust in 1998.   On cross examination it was brought out that the plaintiff was never made administrative trustee of the trusts set up by his father.   An odd circumstance if the plaintiff was to be in his father's shoes and run everything after the father's death.

The court will now discuss various circumstances which occurred after his father's death which the plaintiff said aroused his suspicions.

The plaintiff testified that ten days after his father's death he went to inspect a filing cabinet in the father's home.   He testified “․ I went to that filing cabinet, and someone had gone through the filing cabinet—”It was no longer packed shut, uh, full.”   Lucinda Embersits was the only person who had access to the house at that time according to the plaintiff.   Another circumstance which reinforced the plaintiff's suspicions that there was a new will was a file he found in Lucinda's desk or a filing cabinet in August 2009 a few months after his father's death.   One day Attorney Siegal came to the father's and Mrs. Embersits's home, and then left and the plaintiff states he found a file labeled “Old Will” and in it was the 1982 will—the label was in Mrs. Embersits's handwriting and was initialed by his father.   Apparently he had access to this desk-filing cabinet and he was filing some bills that needed to be paid.   When this file was found Mrs. Embersits was not in the vicinity.

The plaintiff testified that the suspicious activity did not terminate on dates close to the time of his father's death in May 2009.   The 1982 will was admitted to probate by a decree of the Court of Probate on October 20, 2009.   The plaintiff filed a petition to annul that order.   As mentioned he claims he was allowed only limited discovery in Probate Court and after a hearing on the petition the Probate Court upheld the October 20, 2009 order admitting the 1982 will and further found no evidence was introduced as to the existence of another, later will.   While all these events were going on and the matter was still in Probate Court, on December 1, 2010 the plaintiff testified he was at a neighbor of his deceased father to let his father's cat run loose in his old haunts.   He observed Lucinda Embersits in the process of going through the contents of several filing cabinets next to an SUV towing a trailer.   She also put certain items in the trunk of her car.   He told her at the time “Don't throw out any of those files.   Those are my father's business records.”   The records could have also belonged to the family trust and she was not a trustee.   Several days later he sent Lucinda Embersits an e-mail in which he said:

My witnessing and documenting your throwing away files from the cottage garage on Friday, 12/01/10 has me concerned.   Those filing cabinets contained financial, tax and the records relating to the sale of FRM in 1998 among others.   Before whatever you have placed into the bin is picked up on garbage day.   I strongly recommend that you make sure that no business, financial, or tax records are discarded!   I personally know that there are/were personal tax and financial records in those files dating back to when the company was sold.

Interestingly at the scene of these activities and in the e-mail, there is no admonition about not discarding a post–1982 will or documents or estate planning materials that could have referenced such a will—all at a time when filings in Probate Court indicated the petitioner, Steven Embersits, was of the opinion that in fact a post–1982 will was crafted.

What casts doubt, at least in the court's view, on all of the foregoing “suspicious” circumstances is the fact that before and after his father died the plaintiff had full access to all of his father's records in the main house and a cottage on the property—there is no claim Mrs. Embersits had no knowledge of this access or that it occurred without her permission.   Yet the plaintiff did not find any post–1982 will or any direct reference or inferential reference to it, except in the discovery of the file labeled “Old Will” with a copy of the 1982 will in it.

In fact the 1982 will was an “old” will created 27 years before Mr. Embersits death.   Why would Mr. Embersits even retain a copy of the 1982 will if it had been superseded?   And, perhaps more to the point, how could any perpetrators of a conspiracy to deny the existence of a new will have failed to change the label on the file containing the 1982 will to avoid the suggestion now being made?   What motive would they have had to be concerned about the existence of a new will at least up until the creation of the family trust in the late 1990s—this despite the fact that the plaintiff testified at one point he suspected a new will was drawn up somewhere between 1986 and 1989.

(b)

Moving beyond the testimony of the plaintiff there are several arguments by way of inference.   In his brief the plaintiff states Attorney Siegel executed several trust and estate planning documents (which are known to date).

(a) Operations Rescue Management Corporation (1981)

(b) Last Will and Testament (1982)

(c) Embersits Family Limited Partnership (1985)

(d) FRM Co. General Partnership (1990)

(e) Facilities Resource Management Company (1990)

(f) Operation Resource Management Company (1990)

(g) John Embersits Family Trust (1998)

(h) John F. And Lucinda T. Embersits Joint Insurance Trust (2000)

(i) Phoenix Facilities Management, LLP (2005)

(j) John and Lucinda T. Joint Insurance Trust (2005)

(k) Wyndy Brooks Investments (2005)

The question presents itself is whether it reasonable to think that John Embersits upon the advice of Attorney Siegel would have let 27 years pass from the 1982 will to his death in 2009 without recognizing the need to have a new will prepared to accommodate all the trust creation, business operations and estate planning after 1982?   It is also true that there were new grandchildren in the picture after 1982 and changes in Connecticut tax law.   The plaintiff suggests it would not be a reasonable inference.   But at trial counsel for the plaintiff conceded Attorney Siegel would be the only lawyer who would have drawn up this hypothetical new will.   And Attorney Siegel, who specializes in tax, trusts, and estate law and has been practicing in this area since 1978 and is now a partner in Schiff Hardin testified adamantly, that he did not prepare any will for John Embersits after 1982 and he did not destroy any will so created.   He categorically denied that any of the trust creations and business entities he helped set up with Mr. Embersits, the appearance of grandchildren, or changes in tax law would have negated the effective utilization of the provisions of the 1982 will or require changes to it because of trusts, business entities, grandkids or tax changes.   He specifically said the 1982 will “actually anticipates the possibility of grandchildren.”   Attorney Siegal was asked when is the last time he reviewed Mr. Embersits will with him.   Attorney Siegal's answer was “there was nothing to review.   That document in 1982 (the 1982 will) is the same document I would have proposed to him today if he were alive.   There was nothing to change in the document.”

There was also much conflicting direct testimony and cross examination presented as to whether John Embersits was a resident of Florida or Connecticut in the years before his death in 2009.   All of this relating to his obtaining a homestead exemption under Florida law for tax purposes.   Attorney Siegel testified that this would make no difference with respect to the effectiveness and applicability of the 1982 will—an answer seemly dictated by the Full Faith and Credit Clause of the federal constitution.

The court also interprets Attorney Siegal's testimony as saying that the creation of a Florida intangible tax trust as having nothing to do with the disposition of assets upon death.   Attorney Hujsa who was deposed by the plaintiff shortly before trial and who is employed by Cummings and Lockwood in Naples, Florida office also said such a trust “is not an estate planning device in the typical sense like a will or revocable trust.”

No expert testimony was presented by the plaintiff to refute any of the foregoing opinions or even an explanation of why the matters just discussed would provide any motive or reason to draft a new will except for generalities to the effect that despite grandchildren, the creation of various trusts and business entities, 27 years passed therefore how can one come to any other conclusion but that a new will must have been drawn up—no explanation apart from the plaintiff's uncorroborated claim that the 1982 will conflicted with his father's statements that the plaintiff would be in his father's shoes.

There are two other areas that should be explored as to whether they suggest any inference or lack thereof regarding the existence of a will prepared by Attorney Siegal after the preparation of the 1982 will.

As to the first matter Exhibits 30 and 31 need to be examined.   Attorney Siegal, after leaving Cummings and Lockwood, went to the firm of Kelley, Drye and Warren for a few months in 2004 then he went to his present firm, Schiff Hardin where he still practices.   Exhibit 31 was a document prepared by Kelley, Drye and Warren showing that the Embersits file was opened August 13, 2004.   It then lists in several pages documents sent to Attorney Siegal on June 30, 2009 at Schiff Hardin.   On the first page there is an entry “Wills and Powers of Attorney.”   Four pages into the document there is an entry “Will:  Embersits, John F.” Upon questioning by his lawyer the plaintiff answered “No” as to whether he was “Provided with any information that indicates what was contained in the “Will, John F. Embersits folder.”

As to the first folder, the suggestion apparently being that the sought after post–1982 will was in that folder.   Attorney Siegal testified that the designation “Wills and Power of Attorney” was a label prepared by Kelley, Drye and Warren, not by him and does not suggest the existence of another will, presumably later than the 1982 will.   No one from the Kelley, Drye, Warren firm was called to refute Attorney Siegal's characterization.   As to the folder “Will:  Embersits John F.” Attorney Siegal said he did not have the original of the 1982 will but he always retained a copy, it was in the John F. Embersits files.   Common sense would seem to indicate that this last mentioned folder contained that very copy.   What else can be rationally surmised—Attorney Siegal did not request the Embersits file for five years after he left Kelley, Drye and Warren.   Would he be carrying the copy he referred to in his vest pocket or stow it in the top drawer of his Schiff Hardin desk?

Perhaps even more to the point Exhibit 30, which is an invoice prepared by the Schiff Hardin firm dated August 21, 2009 reflects two charges.

06/11/09—Check Connecticut Probate Code and other sources about procedure for probating photocopy of will.

Timekeeper:  Richard A. Siegal

06/12/09—Investigate files for original wills.

Timekeeper:  Richard A. Siegal

The date 6/11/09 is significant since on 6/9/09 the Kelley, Drye and Warren firm had sent to Attorney Siegal the Embersits files according to Exhibit 31.   The 6/11/09 entry supports the notion that having received a folder with only a copy of the 1982 will—he had to investigate whether he could rely on only a copy of a will in the Probate proceedings which had commenced.

The 6/12/09 entry says, as noted, “Investigate files for original Wills.”   Attorney Siegal's explanation that the plural reflects his terrible handwriting and that there was only one will, the 1982 will, he was looking for.   What else on earth could this mean—is there some suggestion that he retained the 1982 will in copy form and a newer will in copy form, why would he be looking for both?

Another observation could be made.   If Kelley, Drye and Warren retained the Embersits file from 2004 to June 2009, it is difficult to believe Attorney Siegal would have been in a position to craft a new will without access to that file and if Attorney Siegal had a duplicate file why did he have Kelley, Drye and Warren send him the Embersits file kept at that firm from 2004 to June of 2009 when it was sent to him at Schiff Hardin.

A final matter to be discussed in this section of the opinion will be the issue of the billing records.   The plaintiff claims no billing records were produced in discovery or otherwise turned over to him or discovered by him in his examination of the Embersits files.   Billing records would presumably show if there was a billing for the preparation of a new will for Mr. Embersits at some date after the 1982 will.

What inferences are sought to be drawn?   The first possible inference is that although such billing records exist and could have been produced to show the absence of any charges for preparation of a will after 1982, the failure to produce the records “carries an implied admission that such evidence would not be favorable,” Tait & Prescott, Tait's Handbook of Connecticut Evidence, § 8/16/12(e) “Failure to produce evidence,” pp. 504–06.   A second inference sought to be made is spoilation—the records which would have shown preparation of another will were destroyed, see generally Beers v. Bayliner Marine Corporation, 236 Conn. 769, 777–79 (1996), also Tait & Prescott and subsection (f) of § 8.16.12, pp.   506–07—that is the trier is permitted to draw an inference that destroyed evidence would have been unfavorable to the party that destroyed it.   But as Beers makes clear (1) the spoilation must be intentional (2) such evidence must be relevant to a material issue and (3) the party seeking to have such an inference drawn must have acted with “due diligence”—either by notifying the spoilator to preserve the evidence, by trying to have the evidence produced, or by seeking a court order, 236 Conn. at pp. 778–79.

Beers cites an earlier case to the effect that the inference does not “supply the place of evidence of material facts and does not shift the burden of proof so as to relieve the party upon whom it rests of the necessity of establishing a prima facie case, although it may turn the scale when the evidence is closely balanced, Doty v. Wheeler, 120 Conn. 672, 679 (1936).

The plaintiff's attorney stated that no billing records were produced from any of the firms Attorney Siegal worked at regarding the Embersits matter except for the estate administration bill dating from after 2009.   But Attorney Siegal testified that he did not know whether it would have been standard practice to transfer billing materials when he asked for transfer of the Embersits file to the successive firms he worked for.   No evidence beyond this of standard practice was produced.   Attorney Siegal further testified that he did not know if any billing materials were contained in the Schiff Hardin files where he now is a partner and to which the Embersits file was transferred in 2007.   He denies removing any billing materials from the files which were offered for inspection to Steven Embersits and the plaintiff's present counsel.   Interestingly on redirect examination by plaintiff's counsel Attorney Siegal responded that he would not have needed the billing records from 1982 on in his estate planning and tax consultation work with John Embersits.   Attorney Siegal said at trial that if the court ordered the production of any billing records he would go back and look for them but “if we had them they would have been produced originally.”

The only billing record is dated July 14, 1982 for the preparation of the 1982 will—why were no others produced from the Schiff Hardin file the attorney for the plaintiff inquired.   Attorney Siegal said the July 1982 letter was not a billing record but was attached a letter which stated further work needed to be done with regard to designation of beneficiaries for his insurance coverage and finalizing the client's qualified retirement programs.   At that point the attorney for the defendant noted that this letter (Ex. 1) with its attachment was kept in a correspondence folder and not in any billing folder.  “There weren't any billing folders.”   No objection was made to this statement nor was there any evidence offered to rebut it.   Finally it should be noted on this topic that no objection was raised prior to trial about the absence of billing records in any production given to the plaintiff.   It was first raised at trial.   Prior to trial there was thus no request for an order that billing records be produced.   Trial subpoenas and subpoenas duces tecum were not issued for use at the trial although the plaintiff certainly had time to do so.

The point of the foregoing is to rebut the surmise that any of the billing records referred to still existed and beyond that whether they existed after any point in time when the defendant or her agents knew or had reason to know the 1982 will would be contested or even that any new will would have put the defendant herself in any worse position than she would have been if the 1982 will were probated after John Embersits' death.   The testimony on that point being that the 1982 will did not give the plaintiff the control of his father's business that his father from at least the 1990s promised would be his.   It was never indicated why as to that particular explanation an inference could be drawn that this would endanger Mrs. Embersits's prospective financial situation.   Without that detailed information how can the court speculate about inferences.   And insofar as Attorney Siegal is the agent of the estate how can the court assume he had a motive to come to court and basically lie under oath by saying he never prepared a new will for John Embersits after the 1982 will and in furtherance of that design purged billing records from his files.   He represents the Estate and is not Mrs. Embersits's lawyer for other purposes.   What motive would he have in perpetrating this grand cover up—to gain some fees for probating the 1982 will?

In light of the foregoing discussion the court finds it difficult to accept the plaintiff's position that based on what has already been produced in discovery suggests that a post–1982 will was prepared.   The court does not accept the position, therefore, made in counsel's opening statement that what Mr. Embersits was aware of and what has been discovered thus far suggests the existence of a later will.

But that does not end the matter.   An interrelated issue is whether the compliance with discovery was so wanting that fairness would require further discovery be had in this case.   Although the foregoing discussion is relevant to this inquiry it is not conclusive because it would be unfair to limit the plaintiff to evidence and documents produced when the production represented only limited compliance with discovery requests.   However this issue must be answered in the context of our discovery rules and court rules regarding the conduct of discovery and the dates for completion of discovery in the context of objections which can be made for failure to comply with appropriate discovery requests and orders that can be requested in light of such alleged failures.

The attorney for the plaintiff in his opening remarks said that “his client asks the court to allow further discovery on the existence of a later will and should such discovery reveal the will, to enter orders revoking the acceptance of the 1982 will to Probate.”   At a later point the court addressed counsel to the effect that the “thrust of (his) presentation is going to be discovery that you think you further need in this case.”   The response was “Correct.”

The court believes counsel's position can be invitation to infinite regression.   The appeal was brought to Superior Court because of what is claimed to have been the limited discovery afforded by Probate Court to prove the existence of a new will.   That is certainly fair enough.   But the matter in Superior Court is de novo and once in Superior Court Practice Book Rules regarding discovery are operative and the scheduling orders and other court orders and rules are also operative.   Those procedures and rules are a distinct phase of the litigation in Superior Court.   The purpose of this hearing is not to determine if further discovery should be ordered as such but the hearing is to decide whether given the liberal discovery, in Superior Court, whether the discovery process was fully and fairly utilized within the context of scheduling orders and other court procedural rules.   In other words a litigant cannot come to Superior Court and complain the discovery he or she received in a prior court was inadequate if the litigant in Superior Court did not take advantage of the discovery that could have been requested or the remedies provided for if discovery was not complied with by the opposing side.

II

The court will now review the history of this case per Edison as to the discovery conducted and court orders as to scheduling.   The writ was filed on January 27, 2012 with a return date of February 28, 2012.   On March 29, 2012 a motion to dismiss the appeal was filed;  the motion was denied on August 15, 2012.   On September 17, 2012 the defendant asked for and was granted a continuance to October 15, 2012 to plead to the plaintiff's complaint.   On October 9, 2012 defendant filed a caseflow request for a scheduling conference to be held.   In the request defense counsel said that since the denial of the motion to dismiss she had advised defense counsel of Mrs. Embersits's willingness to conclude the matter with a reasonable period for discovery and then a hearing as to whether there was a new will.   She then represents that after numerous requests defense counsel did not respond.   On November 20, 2012 Judge Young entered a scheduling order to which both sides agreed.   The scheduling order read as follows:

Disclosure and production requests to be served by December 14, 2012.   Compliance with disclosure and production requests to be made on or before February 4, 2013.   All discovery, including deposition testimony to be completed on or before March 1, 2013.   Dates for briefs and hearing to be scheduled by Caseflow Coordinator.

Judicial Notice was sent out regarding this order and the Caseflow Coordinator indicates on November 20, 2012 a trial date of March 26, 2013 was given.

On January 14, 2013 defendant's counsel filed a motion for extension of time to file responses to the plaintiff's discovery motion which she alleges was filed December 14, 2012.   In the request for an extension of time to respond to discovery.   In the motion certain representations were made:

This is a probate appeal of a decree from the Madison–Guilford Probate Court in which Steven Embersits originally sought to take discovery of estate planning done for his father at the law firm, Kelley, Drye & Warren, in search of a later will to that of the 1982 Last Will & Testament admitted for probate of his father's estate on October 20, 2009.   The plaintiff has now served 50 interrogatories and 38 requests for production on Mrs. Embersits for information that goes well beyond an inquiry of whether Kelley, Drye & Warren has a later will.   A brief extension of 10 days is required to respond to these extensive discovery requests.   This is the first discovery the plaintiff has served since this probate appeal was filed on January 27, 2012, and this is the first request for extension to respond to plaintiff's discovery requests by Mrs. Embersits.

This probate appeal is scheduled for a court trial on March 26, 2013.   Undersigned counsel has inquired of plaintiff's counsel whether there is any objection to this request and has received no response.

To the court's knowledge these representations were not contested before the trial date or at trial.

On January 17, 2012 and January 18, 2012 the plaintiff filed motions for commissions to take depositions of out-of-state individuals, both employees at the Florida offices of Cummings and Lockwood, the firm where Attorney Siegal worked up until 2004.   Action on these motions was continued until February 5, 2012 so that a motion to withdraw by counsel for the plaintiff could be addressed by the presiding judge.   The motion for permission to withdraw was filed on January 31, 2013 and was denied on February 19, 2013.   On February 19 and February 21, 2013 the motions for commissions to take depositions of out-of-state witnesses was granted.

On January 24, 2013 the defendant had filed an objection to the plaintiff's “First Set of Interrogatories and Requests for Production.”   This motion was never claimed for a hearing.

On January 31, 2013 plaintiff's counsel also filed a motion for continuance of the March 26, 2013 trial date giving the reason that discovery was not completed.   This was denied by the Presiding Judge on February 4, 2013, without prejudice.

Also on January 31, 2013 a motion to modify the scheduling order was filed.   In the motion three reasons were given:  (1) objections have been filed to the plaintiff's discovery and production requests “and additional time is needed is necessary for resolution of the defendant's objections.” (2) motions for commissions to take depositions of out of state witnesses have been filed but not adjudicated. (3) counsel is filing a motion to withdraw.   On February 19, 2013 the court as indicated denied the motion for continuance and the motion for commissions to take out of state depositions was granted.   A hearing was held on February 19, 2013 at which these motions were discussed and the court also addressed the motion to modify the scheduling order.   Denial of the motion for continuance of the trial date in effect served as a denial of the motion to modify the scheduling order which requested that there be compliance with disclosure and production requests by April 1, 2013, depositions be scheduled on or before April 4, 2013, and all discovery including deposition testimony to be completed on or before May 1, 2013.

At the February 19, 2013 hearing the court discussed the subpoenas that would be a necessary adjunct to the out of state depositions.   The court indicated the subpoena would be limited to documents related to the estate and the planning for the estate.   The court explicitly said if plaintiff's counsel came back before her and could show other information about various trusts was relevant to his purpose of finding a post–1982 will, counsel could come back and she would address these issues.   But plaintiffs raised, in relation to this action of the court, the possibility of scheduling issues regarding the Florida depositions which were sought.   The presiding judge at this February 19, 2013 hearing said “I am going to leave these matters open to come back if there are problems.”

At the February 19, 2013 hearing the court also “preliminarily denied” the plaintiff's motion to modify the scheduling order.   The plaintiff after the February 19, 2013 hearing and prior to trial made no attempt to press his requests for discovery even as to witnesses, law firms, documents having nothing to do with Cummings and Lockwood whose employees were subject to the Florida depositions.   He could have made a caseflow request for a hearing on the defendant's objections to his discovery in the Connecticut action, he could have filed a motion to compel answers or production of identified material which would then be set down for a hearing, he could have requested and would have received a hearing on the objections, since the matter already had a trial date.   After the March 19, 2013 Florida depositions the same motions could have been made.

At the February 19, 2013 hearing the court agreed with defense counsel's representation that the motion for continuance was denied without prejudice on February 4, 2013.   No further motion for continuance was filed prior to trial.   A renewed motion to modify the scheduling was not filed even though the court characterized its denial of the motion as “preliminary.”   With these observations in mind it is, in the court's opinion, too late in the day to raise only upon trial issues about failure to comply with interrogatories or production requests as a grounds to in effect ask for a continuance of a trial which was meant to resolve the matter in issue;  a continuance that would be necessitated if additional discovery were to be allowed.

(c)

Out of an interest in completeness and with the foregoing discussion in mind the court will review the Florida depositions which were made exhibits at trial, the testimony of John Carberry a lawyer with Cummings and Lockwood who was called by defense counsel and cross examined by the defendant's counsel, and the testimony of Mrs. Embersits.

Attorney Carberry testified at trial.   Attorney Carberry is a principal in the firm of Cummings and Lockwood.   He has worked there twenty-five years.   He is the firm's general counsel, loss prevention partner, pro bono partner, and works in a Connecticut office of the firm.   He testified that in response to subpoenas from the plaintiff he reviewed the contents of the Embersits file which he sent to Attorney Ulrich, a member of the firm who worked in a Florida office of the firm.   He did so because a response to the subpoenas would be made in Florida for the holdings of the depositions that were to be conducted by plaintiff's counsel.

He could find no evidence reflecting a will or the draft of a will.   He had the information technology department check the e-mail system and the estate planning system.   He also had the will vaults of the firm checked in Florida and Connecticut.   As indicated there was nothing in any of these resources to indicate a will had been prepared or held at the firm other than the 1982 will.   He said he looked in every place he could think of to find a will but found none.   He spent 15 to 20 hours in this search.

He further testified that when the original subpoenas were issued none of the Embersits files were in the Florida office, he had them sent down from the Connecticut office.   Attorney Carberry also stated that neither he nor his firm presently represents Mrs. Embersits.

He also testified in response to cross examination that he could only look for what he had at the time a subpoena was issued, he was unsure as to whether it could be ascertained that “historically” a will would have been in the will vault.   The plaintiff argues in his post-trial brief that in light of Attorney Carberry's testimony at trial he should be allowed to search for these historical records.   The 1982 will was filed for probate over four years before trial.   An appeal was filed to this court over a year before the trial in the Superior Court which has a liberal discovery regime accessible to utilization by both sides.   It is not understandable why Attorney Carberry or the Connecticut offices of Cummings and Lockwood could not have been deposed or subject to subpoena duces tecum prior to the trial date of March 26, 2013 when he testified.

It was further brought out that in the Florida depositions held on March 19, 2013 a week before Attorney Carberry's March 26th trial testimony, the billing records were not produced according to what he was told.   The billing records issue was previously discussed by the court.   No motion prior to trial was made or a hearing on any such motion requested ordering production of any such records if they existed and at what time periods they covered although the absence of production was known at the time of the March 1 9th Florida depositions.   No request for sanctions was made pursuant to Practice Book Section 13–14, no trial subpoena was issued.   This is interesting in light of the fact that in the February 19, 2013 hearing before the Presiding Judge that judge made it clear that she was amenable to changing her orders if appropriate reasons therefore were offered.

ii

Mrs. Embersits was called to testify.   She was asked if she produced any of her husband's files that she brought from Florida to her Madison residence.   But she could not say what those files were about.   Again the requests for production were filed weeks before trial, counsel did not resort to any Practice Book remedies or make any request for a hearing or sanctions regarding the failure to produce items sought in discovery.   It is not even clear whether these files were material to the issues before the court or whether, as to these files, plaintiff was given full access to before and after his father's death.

iii

The plaintiff also introduced into evidence depositions of two Cummings and Lockwood employees, Attorney Hujsa and Nancy Holland who is the Florida records coordinator.

Attorney Hujsa works for Cummings and Lockwood at its Bonita Springs, Florida office.   He has been working there for 21 years.   His deposition was taken on March 19, 2013 and was introduced into evidence at the trial on March 27, 2013.

The attorney questioning Attorney Hujsa asked if Cummings and Lockwood prepared checklists for assessing estate planning needs.   He did not recall if he sent out such a checklist before preparing the intangible tax trust for Mr. Embersits.   The subpoena sent to Attorney Hujsa requested the production of all such checklists, he referred it to Attorney Ulrich who apparently was coordinating the response to the subpoena.   It was not explained how or what these checklists would have to do with whether or not a new will was prepared.   No court action, in any event was taken in light of the failure to produce the checklists nor was there any remedy sought under Practice Book rules for the failure to comply with discovery.   Also the checklist sent to clients was defined as a Cummings and Lockwood procedure.   A subpoena before trial to a Cummings and Lockwood office in this state would have sufficed to explain the relevance of any checklist contents to the issue at hand.

Attorney Hujsa testified that in response to the subpoena duces tecum prepared in conjunction with the subpoena he searched his office and file room and could not find any residual documents retained by his firm after sending the Embersits file to the Kelley, Drye firm.   He did not know what was specifically sent to that firm.

Subpoenaed documents were produced by Cummings & Lockwood and were brought to the deposition but Attorney Hujsa said he had not reviewed them.

Exhibit 2 of the subpoena duces tecum was a copy of the intangible trust prepared for Mr. Embersits and was provided by Cummings & Lockwood in response to the subpoena.

In the questioning of Attorney Hujsa the attorney for the plaintiff asked if he had had any involvement in looking for items 1 through 10 on the subpoena duces tecum issued in conjunction with the Florida deposition subpoena.   Attorney Hujsa said he was not involved in the search.   The implication being that these documents were not produced.   But they were not identified at trial and insofar as they are set forth in Exhibit A to the First Motion for a Commission to take the deposition of Attorney Hujsa it was not explained how these documents had anything to do with the issue at hand—whether there was a will prepared after June 1982.¹

Nancy Holland was also deposed in Naples, Florida on the same day as Attorney Hujsa.   She is the Florida records coordinator for Cummings and Lockwood.   She testified that she did a complete search of what was available to her in Florida concerning the Embersits matter and once she received the subpoena, requested the firm's Connecticut offices to send to her what they had.

Attorney Ulrich of Cummings and Lockwood, who apparently supervised the subpoena process for the firm, interjected that to comply with it they located residual files (files retained after Attorney Siegal went to Kelley, Drye).   Attorney Ulrich said the firm had held nothing back, no documents were pulled once they were discovered.

The plaintiff's attorney noted to Mrs. Holland there was not a single final billing statement to the client that was disclosed.   Ms. Holland said records such as this would come from the Stamford office of Cummings and Lockwood.   When she received the subpoena—which apparently contained a request for billing statements—she asked the Stamford office for everything they had.   She said the only items left in possession of Cummings and Lockwood were the residual files;  everything else had been transferred to Attorney Siegal when he went to Kelley Drye. Attorney Carberry was the individual she communicated with in the Stamford office regarding the subpoena duces tecum request.

Ms. Holland also said she searched for any documents that were ever stored in the Cummings and Lockwood, Naples, Florida vault.   No Embersits documents were stored in the vault.   The Connecticut office storage of documents and where they store them is different from the practices of the Florida office.   No subpoena was issued, so far as the court is aware, for the contents of the Stamford Cummings and Lockwood vault where any post–1982 will for Mr. Embersits would have been stored.

Ms. Holland did say that at some time in the 1990s the various offices of the firm could communicate with each other as to what was in each office.   She could not say between 1992 and 1997 what documents were created by the firm for Mr. Embersits.   Only the attorneys representing Mr. Embersits at the time would be able to locate such documents.   As noted Attorney Siegal was the only attorney representing Mr. Embersits and he testified he did not prepare a will for Mr. Embersits after 1982.   Ms. Holland offered the same answer as to documents prepared in 1998 or 1999.²

Interestingly the attorney for the plaintiff elicited from Ms. Holland that she did not know of the procedures the Stamford office used to locate documents requested.   He asked if she knew a woman named Melissa McCrea.   Ms. Holland said the woman is technical support for Cummings and Lockwood.   Ms. McCrea was not subpoenaed for trial and only the testimony of Attorney Carberry was presented at trial and he was offered by defense counsel.   From the questioning it is apparent that plaintiff knew of Ms. McCrea before the deposition and had entertained the notion that the Stamford office had its own procedures for location of documents.

The plaintiff's attorney then turned to an examination of Ms. Holland concerning the transfer of the Embersits file to Kelley, Drye in 2004 where Attorney Siegal had moved from Cummings and Lockwood.³

Ms. Holland was asked as to what is the most detailed search that could be done by her firm to find specific items in the Embersits estate planning file.   She said “you would access FileSurf.”   All that was brought out was that she “personally” did not recall doing this.   That hardly establishes the search was not done by someone else at the firm—that was never established and perhaps more to the point Attorney Ulrich was not deposed or called to testify at trial and from his interjections at the deposition it would appear that he was directing the Cummings and Lockwood search for the items requested in the subpoena duces tecum.

In that regard when the deposition questioning turned to whether Ms. Holland did a search for billing records, Ms. Holland said she turned over what he had and Attorney Ulrich said “we provided all the billing information that we have.”   Ms. Holland said she had no explanation as to why only one billing statement was provided.

Interestingly again counsel for the plaintiff asked Ms. Holland if she knew a Mr. Merola, she said yes.   Counsel then said he told Steven Embersits can be pulled up going back ten years.   Mr. Merola apparently works at the firm.   The plaintiff knew of his existence at sometime before the deposition and trial—he was never subpoenaed.   As noted he was not questioned or produced at trial to ascertain the support he would offer for the conclusion stated that we turned over what we had.

Ms. Holland upon further questioning stated she searched throughout the Cummings and Lockwood system and did not find an Embersits will.   She also found no e-mail communications between Cummings and Lockwood employees and Mr. Embersits.

iv

The foregoing discussion indicates to the court at least that (1) the items or material sought to be produced and not produced would have no bearing on whether in fact a new will would have necessitated the requirements of a new will (2) even if that was not true no explanation was given as to why discovery that could have located the material was not sought from sources that would be more likely to have them (3) no steps were taken to enforce discovery and production requests not complied with and (4) no trial subpoenas were issued to the Stamford office of Cummings and Lockwood to produce the documents inquired about.

One of the plaintiff's main arguments is that his father had told him before he died that he would be in charge of various businesses and trusts set up by the father which would conflict with the provisions of the 1982 will.   The claim is made that not a single operating agreement for these operations were turned over as requested.   But he would have known of the relevance of these documents at the point his father died and the 1982 will was presented in probate in 2009 and certainly at the time he filed his complaint.   But discovery requests were not made until months after the commencement of litigation.   An objection to the discovery requests by the plaintiff was filed and no hearing was requested on the objections.   In any event the argument runs to the effect that the operating agreements of the entities mentioned would have to have contemplated the demise of their principal members to maintain the uninterrupted operation of the business—the suggestion being made apparently is that in that eventuality they would have mentioned the plaintiff as the person in charge in accordance with what his father told him, that he would be the person in charge once he died.   Even if Mr. Embersits made these statements, query is the premise true, that the demise of one of the principle members would have interfered with the uninterrupted operation of the business?   The plaintiff's post-trial brief says that Attorney Siegal and Mrs. Embersits even failed to turn over “the articles of organization that were filed with the Connecticut Secretary of State to establish these entities.”   But could not the plaintiff have gotten these documents from the Secretary of State.   The point is, one can conjecture that despite what Mr. Embersits may have told the plaintiff, for reasons we will never be able to find out, he decided not to have a new will drafted.   Why could not other principle members of these entities have been subpoenaed and questioned as to whether Mr. Embersits indicated that after his demise the plaintiff would be the person in charge?   Would not the operating agreements themselves provide for a transition plan after the demise of Mr. Embersits, why would a will be necessary to accomplish this?

In the examination of Attorney Carberry there was much questioning about the possible existence of a will and a brief reference to an intangible trust there was no questions or inquiries about operating agreements for any entities set up by Mr. Embersits before he died.

In the questioning of Attorney Hujsa at the deposition, there was no inquiry into the topic of operating agreements.   Attorney Hujsa said Attorney Siegal did not mention Mr. Embersits's businesses in the conversations he had with him.   He could not recall any conversation he had with Mr. Embersits as to what role the plaintiff Steven Embersits was “playing as far as any of his business entities.”

In the examination of Nancy Holland and her search procedures and what she could locate or did not find, there was no specific questioning or references to operating agreements that was made clear, at least to the court.

In any event Attorney Siegal was asked whether from 1982 until the mid–2000s he was Mr. Embersits's counsel.   He answered “A. With respect to tax and trusts and estates work, yes, he had other counsel for his corporate work?”   Would that other counsel not have Mr. Embersits's records regarding his business entities?   Attorney Siegal is an estate planning lawyer, presumably he would not draw up operating agreements for business operations of his estate planning clients.   He was not asked if he knew the nature of the operating agreements and what they provided and how or if they would have this interfered with the operation or viability of the 1982 will.   Also should not these “other” lawyers have been subpoenaed to testify as to any operating agreements they might have drawn up.   Clearly the plaintiff had the burden of proof on the point he is trying to make.

Nothing in the examination of Attorney Carberry, Attorney Hujsa, Nancy Holland or Mrs. Embersits indicates to the court the likelihood of a post–1982 will having been drawn up for Mr. Embersits by Attorney Siegal.   Also even if the questioning suggested the possibility (and that is all it appears to be) that documents were held back by Cummings and Lockwood employees the plaintiff did not pursue diligently his remedies under the rules of discovery to provide the information or documents requested or resort to a renewed motion for continuance or renewed motion for modification of the scheduling order before trial.   Furthermore even with that as a premise there is no reason why trial subpoenaes could not have been issued requesting some of the documents.

For the foregoing reasons the appeal is dismissed.

Thomas J. Corradino

Judge Trial Referee

FOOTNOTES

FN1. It should be noted that the foregoing discussion mainly tried to focus on failure to comply with discovery/subpoena duces tecum issues.   But Attorney Hujsa was also questioned about general issues involved in the case.   For example he was questioned about the creation of an intangible trust for Mr. Embersits by the Florida office.   But he did not indicate this or anything else that was done for Mr. Embersits would have required the creation of a new will.   The most he would say was that it surprised him that a new will was not prepared for Mr. Embersits for 27 years after the creation of the new will.   But it was not unheard of—that hardly translates into the basis of a finding that a new will was probably drawn up.   No explanation was given for the surprise nor was it directly related to anything beyond a passage of time argument.   Attorney Siegal explicitly said none of the trust activities or business activities or life situation changes of Mr. Embersits after the 1982 will required the need for a new will.   The plaintiff offered no expert testimony to counter this observation and it was his burden to do so..  FN1. It should be noted that the foregoing discussion mainly tried to focus on failure to comply with discovery/subpoena duces tecum issues.   But Attorney Hujsa was also questioned about general issues involved in the case.   For example he was questioned about the creation of an intangible trust for Mr. Embersits by the Florida office.   But he did not indicate this or anything else that was done for Mr. Embersits would have required the creation of a new will.   The most he would say was that it surprised him that a new will was not prepared for Mr. Embersits for 27 years after the creation of the new will.   But it was not unheard of—that hardly translates into the basis of a finding that a new will was probably drawn up.   No explanation was given for the surprise nor was it directly related to anything beyond a passage of time argument.   Attorney Siegal explicitly said none of the trust activities or business activities or life situation changes of Mr. Embersits after the 1982 will required the need for a new will.   The plaintiff offered no expert testimony to counter this observation and it was his burden to do so.

FN2. It should be noted the 1998, 1999 queries occurred at a time at or around or before the family trust meeting in 1998.   The court previously discussed that meeting and the plaintiff's apparent retraction of his assertion that his father had told him he had prepared a new will in conjunction with recently conducted estate planning.   This was pursued at trial a week after the Holland deposition..  FN2. It should be noted the 1998, 1999 queries occurred at a time at or around or before the family trust meeting in 1998.   The court previously discussed that meeting and the plaintiff's apparent retraction of his assertion that his father had told him he had prepared a new will in conjunction with recently conducted estate planning.   This was pursued at trial a week after the Holland deposition.

FN3. That raises another point not directly related to the deposition of Ms. Holland but serves to underline the fact that discovery was not pursued here to the extent it could have been.   The January 2009 appeal to Superior Court explicitly mentions the fact that Attorney Siegal in June 2009 asked that the Kelley, Drye files be sent to his office at Schiff Hardin.   The complaint notes matters previously discussed in this decision—specifically folders in the Kelley, Drye file, originally sent to that firm from Cummings and Lockwood in 2004 when Attorney Siegal moved to Kelley, Drye to carry on his practice for a few months.   The folders were entitled “Will of Embersits John” and “Copies of Wills.”   In the appeal at paragraph 36 it says the Probate Court “deprived the plaintiff of the opportunity to subpoena witnesses, such as a representative of Kelley, Drye, to the evidentiary hearing” (before the Probate Court).   No representative of Kelley, Drye was subpoenaed to this trial, no depositions were requested to be taken of any employee of Kelley, Drye—a procedure that could have been resorted to in the beginning of 2012, over a year before this trial..  FN3. That raises another point not directly related to the deposition of Ms. Holland but serves to underline the fact that discovery was not pursued here to the extent it could have been.   The January 2009 appeal to Superior Court explicitly mentions the fact that Attorney Siegal in June 2009 asked that the Kelley, Drye files be sent to his office at Schiff Hardin.   The complaint notes matters previously discussed in this decision—specifically folders in the Kelley, Drye file, originally sent to that firm from Cummings and Lockwood in 2004 when Attorney Siegal moved to Kelley, Drye to carry on his practice for a few months.   The folders were entitled “Will of Embersits John” and “Copies of Wills.”   In the appeal at paragraph 36 it says the Probate Court “deprived the plaintiff of the opportunity to subpoena witnesses, such as a representative of Kelley, Drye, to the evidentiary hearing” (before the Probate Court).   No representative of Kelley, Drye was subpoenaed to this trial, no depositions were requested to be taken of any employee of Kelley, Drye—a procedure that could have been resorted to in the beginning of 2012, over a year before this trial.

Corradino, Thomas J., J.T.R.