IN RE: The Estate of F. Francis D'Addario (2014)

Caption Date:

CONSOLIDATED APPEALS FROM PROBATE IN RE THE ESTATE OF F. FRANCIS D'ADDARIO

MEMORANDUM OF DECISION

Preliminary Statement/Procedural History

These three consolidated appeals from the probate court represent the latest chapters in a book that continues to be written, and which promises to be quite lengthy.¹  The Cadle Co. (“Cadle”), an unsecured creditor of the Estate of Francis D'Addario, has been embroiled in litigation with the estate and its executors for years.   These particular consolidated appeals relate to decisions of the probate court regarding the scope and procedure through which Cadle may or may not seek discovery.

An Appeal from Probate was taken to the Superior Court contesting the scope of discovery which is permitted in the Probate Court.   Citing Carten v. Carten, 153 Conn. 603 (1966), the trial court limited the scope of permissible discovery.   Because the Probate court is a statutory court of limited jurisdiction, the Court determined that its jurisdiction did not extend to the review of complex management and business operations.

Cadle Co. appealed to the Appellate Court, which reversed the decision.

․ The Appellate Court concluded, based upon the plain and unambiguous language of the statute, that the Probate Court may order discovery concerning an interim accounting, and that the scope of discovery was broad.  In Re Probate Appeal of Cadle Co., 129 Conn.App. 814, 826 (2011).   The decision was released on July 5, 2011.

The Cadle Co., on July 15, 2011, served subpoenas upon various individuals and corporate entities, [the non-party subpoenas] seeking the production of documents, and deposition testimony.   Production of documents was requested on or before July 27, 2011, with depositions scheduled to take place beginning on August 25, 2011, and running through September 20, 2011.

(Memorandum of Decision on Cadle's Motion to Dismiss, July 24, 2012, Radcliffe, J.) The non-party subpoenas commanded production of the documents at the office of counsel for Cadle, as indicated, prior to the date of the noticed depositions.   On August 5, 2011, Cadle filed a motion to compel production of the documents because the non-party witnesses had not produced the documents as commanded under the subpoena.   Soon thereafter, the executors of the estate moved to quash the subpoenas on both substantive and procedural grounds.   Simultaneously, Nicholas Vitti and Marylou D'Addario Kennedy, (two of the thirteen would-be deponents) filed motions to quash adopting the executers' arguments.   The Probate Court denied these motions to quash and granted the motion to compel by rulings dated December 8, 2011.   The denial of the motions to quash is the subject of the appeal in case bearing docket no.   X10 UWY CV 126016880.   The granting of the motions to compel is the subject of the executors' appeal bearing docket no.   X10 UWY CV 126016879.

In September 2011, Cadle issued subpoenas duces tecum to the executors of the estate (the executors' subpoenas).   As was the case with the non-party subpoenas, the subpoenas sought production of records in advance of the scheduled deposition.   These subpoenas were challenged on the same grounds as the non-party subpoenas by motion to quash dated November 15, 2011.   In addition, Lawrence D'Addario, argued that the subpoena to him was never properly served.   The Probate Court denied the motion to quash in part on January 11, 2012.   The ruling provides that the motion to quash is denied “except that any documents shall be produced at the time of the deposition.” ²  This ruling is the subject of the executors' appeal bearing docket no.   X10 UWY CV 126016878.

As indicated, the issues on appeal in these three cases raise both procedural and substantive issues.³  By Order dated November 5, 2013, the court bifurcated the issues, indicating that it would take up the procedural questions first and, depending on the outcome of those issues would hear the substantive issues, as may still be necessary.   The court heard argument on the procedural issues on November 27, 2013.

Discussion

An appeal from a Probate Court to the Superior Court is not an ordinary civil action ․ When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate ․

The function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo ․ Thereafter, upon consideration of all evidence presented on the appeal which would have been admissible in the probate court, the superior court should exercise the same power of judgment which the probate court possessed and decide the appeal as an original proposition unfettered by, and ignoring, the result reached in the probate court.

(Citations omitted;  internal quotation marks omitted.)  Sandford v. Metcalfe, 110 Conn.App. 162, 167–68, cert. denied, 289 Conn. 931 (2008).

The appeal from probate does not vacate the decree appealed from, nor does it ‘lift’ or surrender the entire matter from the Probate Court into the Superior Court for further proceedings ․ ‘On the contrary, it leaves the matter as it was in the Probate Court, there to be continued with and completed according to law, presenting in the meanwhile to the Superior Court for redetermination, after a retrial of facts, the special and limited issues embraced within the particular decree appealed from.   It follows that the Superior Court ․ may not consider or adjudicate issues beyond the scope of those proper for determination by the decree being attacked.’  ․ The judgment on appeal should affirm or reverse the decree appealed from, in whole or in part, and answer the questions raised by the reasons of appeal.

(Citation omitted.)  Silverstein's Appeal From Probate, 13 Conn.App. 45, 52–53 (1987).

A. The Procedural Issues.

The executors, Nicholas Vitti and Marylou D'Addario Kennedy, seek to quash the subpoenas raising several procedural issues.   First, they argue that the command to produce the requested documents prior to the date of the deposition is not permitted under Connecticut law and is an abuse of the subpoena power given to commissioners of the superior court.   Thus, they argue, the subpoenas are void.   Second, they argue that the non-party subpoenas commanded the production of records within 15 days of the date the subpoenas were served in violation of Practice Book Section 13–28(c).  Finally, with respect to the subpoena to Lawrence D'Addario, the executors argue that Lawrence D'Addario was never properly served with the subpoena directed to him.

Cadle defends the propriety of the procedure it used to serve and command the production of records under our statutes governing the service of subpoenas and further argues that the Practice Book does not apply to probate proceedings so the 15–day rule has no application.

1. Production of Records Prior to the Date of Deposition

The non-party subpoenas were dated July 8, 2011, served on or about July 15, 2011 and commanded production of records on or before July 27, 2011, to Cadle's counsel's office, even though the depositions were scheduled for weeks later.   The executors' subpoenas were dated September 23, 2011, identified deposition dates of November 16 and 21, 2011 and commanded the production of records on or before October 26, 2011 to Cadle's counsel's office.   Cadle issued the non-party subpoenas and the executor subpoenas pursuant to Conn. Gen.Stat. § 52–148e which provides in pertinent part:

(a) Each ․ Commissioner of the Superior Court, in this state, may issue a subpoena, ․ for the appearance of any witness before him to give his deposition in a ․ probate proceeding, if the party seeking to take such person's deposition has complied with the provisions of sections 52–148a and 52–148b and may take his deposition, each adverse party or his agent being present or notified.

(b) The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designed books, papers, documents, or tangible things which are material to the cause of action or the defense of the party at whose request the subpoena was issued and within the possession or control of the person to be examined.   However, no subpoena may compel the production of matters which are privileged or otherwise protected by law from discovery.

The first question raised by the motions to quash is whether the statute permits a commissioner of the superior court to issue a subpoena in connection with a deposition which requires the production of records in advance of the deposition.   For the reasons set forth below, this court answers that question in the negative.   The power to subpoena a non-party to provide deposition testimony includes the power to require the production of records at that deposition but not before.

The statutory language does not specifically address this particular issue and so the court engages, as it must, in the process of statutory construction.

It is well settled that [w]hen construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, [the court seeks] to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the statutory language actually does apply ․ In seeking to determine that meaning, General Statutes § 1–2z directs [the court] first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ․ The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.

(Internal quotation marks omitted.)  Hasychak v. Zoning Board of Appeals, 296 Conn. 434, 443, (2010).   If ambiguity is found, “[o]ur well established process of statutory interpretation [instructs us to look] ․ to the legislative history and circumstances surrounding [the statute's] enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.”  Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 372 (2005).

As indicated, the statute does not discuss whether the authority to issue a subpoena for the taking of a deposition includes the ability to command the production of records in connection with that deposition in advance of the date of the deposition.   It does not expressly permit such a subpoena, nor does it require that the production be made due at the time of the deposition for which the subpoena issues.   The statute is therefore susceptible to more than one reasonable interpretation.   In this court's view however, in passing this statute, the legislature intended for the authority to issue a subpoena for the production of records in connection with the taking of a deposition, to be limited to commanding production of the records at the time of the deposition.

Conn. Gen.Stat. § 52–148a, compliance with which is a pre-requisite to the issuance of a subpoena pursuant to § 52–148e, is concerned solely with the taking of “testimony of any person by deposition.”   Section 148e allows for the issuance of a subpoena so that the would-be deponent is compelled and required to appear for the giving of deposition testimony.   In connection with this authority, Section 148e(b) permits that a deponent may be commanded “to produce and permit the inspection and copying of designated books, papers, documents or tangible things.”   The subpoena authority is created for the purpose of and extends only to the extent of requiring a person to appear and give testimony.   As part and parcel, and not separate and distinct from that authority, the statute permits the person seeking the deposition to require the production of records.   Thus, the authority to command the production of records is tied inextricably to the authority to compel appearance for the taking of testimony and the two commands must therefore be simultaneous in nature.⁴

Further, Conn. Gen.Stat. § 52–148e(e) provides the remedies available in the event that “any person to whom a lawful subpoena is issued under any provision of this section, fails without just excuse to comply with any of its terms.”  The recourse identified in the statute is a capias, whereby the person subpoenaed is “brought before [the] court or judge, ․ and, if the person subpoenaed refuses to comply with said subpoena, such court or judge may commit him to jail until he signifies his willingness to comply with it.” ⁵  Id. Generally, a capias may only be sought after the date on which appearance is commanded has passed and the person under subpoena fails to appear as commanded.   See, e.g. Conn. Gen.Stat. § 52–143;  State v. Payne, 40 Conn.App. 1, 18–19 (1995) (Affirming trial court's discretionary determination not to issue a capias because in part, “the appropriate time for the defendant to have requested the capias was ․ when the witnesses failed to appear,” rather than the following day).   It is this court's view that it would be an absurd result and unintended application of the statute to subject a deponent to seizure and possibly jail for failing to produce documents in advance of the date on which he is commanded to appear for deposition.   By logical extension then, the subpoena power does not include the authority to command such a production in advance of deposition.

This court found no case which discussed the statutory language and this issue directly.⁶  However, analogous issues have been the subject of some discussion at the superior court level.   See, e.g., Esposito v. Town of Bethany, 2007 WL 4711474 (Conn.Super., Corradino, J.), 44 Conn. L. Rptr. 563 (December 14, 2007) (“The only authorized use of the subpoena power in deposition practice is to request documents or other material for use at a scheduled deposition”).  McCarty v. McCarty, 2003 WL 721681 (Conn.Super., Hiller, J.), 34 Conn. L. Rptr. 67 (January 22, 2003) (It is an improper practice to receive documents in advance of deposition and then cancel the deposition);  David v. Alves, judicial district of Fairfield, Dkt. No. CV 03333683 (May 19, 1997, Rush, J.) (It was not appropriate to excuse a witness in exchange for forwarding records subpoenaed);  McLaughlin v. McNeil, judicial district of Fairfield, Dkt. No. CV 0328787 (July 23, 1998, Ford, J.) (Sanctions were imposed when counsel cancelled a deposition after receipt of subpoenaed records);  Smith v. Douglas, judicial district of Fairfield, Dkt. No. CV 0336713 (February 6, 1999, Melville, J.) (Obtaining records ex parte through use of a subpoena duces tecum was “reprehensible” and sanctionable).

Here, Cadle's counsel provided copies of the subpoenas to other parties and indicated that any records received would be made immediately available to all counsel.   Thus, some of the more egregious conduct giving rise to sanctions in the above-cited cases was not repeated here.   However, the potential for Cadle to receive records in the first instance, at a time and on a date unbeknownst to the other parties is clearly present.   Therefore, the types of concerns raised in the above-cited cases have application in this case and lend support to the conclusion that the command to produce documents pursuant to Section 52–148e, may be a command to produce records at the time of the deposition only.⁷

The non-party subpoenas and the executor subpoenas, purporting to require the production of records in advance of the deposition date, were not authorized by statute.   The appellants' motions to quash therefore are granted and Cadle's motions to compel are denied.⁸

Left to be decided with respect to the executor subpoena issued to Lawrence D'Addario is the question of whether Lawrence D'Addario was properly or adequately served.   Cadle acknowledges that neither abode nor in hand service was effectuated as to Lawrence D'Addario.   It further acknowledges that all efforts to “serve” Lawrence D'Addario by certified mail, return receipt requested, at either his home in Vermont or his known business addresses, were returned for one reason or another.

Cadle argues however that Lawrence D'Addario's actual notice, which is evidenced by the motion to quash, when coupled with evidence that Lawrence D'Addario purposefully avoided personal service on several occasions and purposefully avoided receipt of the certified mail sent by the Marshal, should render him adequately served.

In State v. Burrows, 5 Conn.App. 556 (1985), the Appellate Court concluded that in hand service of a subpoena is not required to effectuate service.   There, the reading a subpoena to the recipient at his home and leaving a copy with his acquaintance along with the witness fees was adequate service upon the witness for purposes of a request that the court issue a capias.   The court held:  “Service of a subpoena ‘upon’ a person does not require physical acceptance of it, if the person is given notice of it and its contents.”   Id. at 559.   See, also, Ranfone v. Ranfone, judicial district of New Haven, Dkt. No. FA 040490123 (May 9, 2005, Frazzini, J.) (Where Marshal left subpoena in hands of witness' father and there was insufficient basis upon which to conclude that father gave the subpoena to the witness, a capias did not issue);  Butler v. Butler, judicial district of Hartford–New Britain, Dkt. No. FA 810405660 (May 4, 1990, Dorsey, J.) [1 Conn. L. Rptr. 589] (Where order of notice was served at defendant's abode, applying Burrows by analogy, the court held that service would have been satisfactory if the court was satisfied that the defendant had notice of its contents, but under the circumstances, the defendant's failure to appear and his counsel's representation that he did not know whether his client had actual notice of the hearing, the court was not so satisfied and no capias issued);  Phoenix Limousine Service, Inc. v. Hilchen, judicial district of Fairfield, Dkt. No. CV 000378706 (June 13, 2001, Skolnick, J.) (Where:  witness told Marshal he would not accept service;  Marshal read the time date and location of the hearing to the witness, though not the production demand;  Marshall slid a copy of the subpoena under the door of the witness' residence;  subpoena was properly served and capias properly issued).   These cases are illustrative of the varied factual circumstances under which service will or will not be found to have been effectuated.   It appears a fact intensive inquiry.

Here, Cadle has provided only the Marshal's multiple Returns of Service in which he details his many efforts to locate, speak to and serve Lawrence D'Addario.   The Marshal's return is, of course, prima facie evidence of that which it purports to describe, by way of service.  Jenkins v. Bishop Apartments, Inc., 144 Conn. 389, 390 (1957).   Based upon the various Returns, there is little question that Lawrence D'Addario had notice of the fact of the subpoena.   Less clear, and not established, is whether he had notice of its contents.   Unlike the Burrows case, where the Marshal read the content of the subpoena to the recalcitrant witness, or the Phoenix Limousine Service case, where the Marshal slid a copy of the subpoena under the back door of the witness's apartment after verbally advising him of the date, place and time of the hearing, the delivery of the content of the subpoena in this case is not established.⁹  The subpoena was not left anywhere for Lawrence D'Addario and all efforts to speak with him were ignored.   He did not claim any of the certified mailings and it appears that the certified mailing to Vermont was returned as having a bad address.

Lawrence D'Addario was not adequately served with the subpoena.   The motion to quash the subpoena is granted for this reason as well.

The rulings of the probate court appealed from herein are reversed.   Having so determined, the court does not need to reach the substantive challenges to the subpoenas and the document requests included therein.¹⁰  These matters are hereby returned to the probate court with the hope, but not the expectation, that the estate will progress towards final resolution.

Kari A. Dooley, Judge

FOOTNOTES

FN1. As noted by Judge Radcliffe in these matters previously:  “The Estate of F. Francis D'Addario, which was opened in 1986, has been pending in the Probate Court for the District of Trumbull for over a quarter of a century, and will probably be closed sometime after a reproachment is reached between the decendents of Isaac and those of Ishmael, in the Middle East.”.  FN1. As noted by Judge Radcliffe in these matters previously:  “The Estate of F. Francis D'Addario, which was opened in 1986, has been pending in the Probate Court for the District of Trumbull for over a quarter of a century, and will probably be closed sometime after a reproachment is reached between the decendents of Isaac and those of Ishmael, in the Middle East.”

FN2. No such similar order appeared in the court's denial of the motion to quash the 13 non-party subpoenas..  FN2. No such similar order appeared in the court's denial of the motion to quash the 13 non-party subpoenas.

FN3. The substantive issues include a claim that both the doctrines of collateral estoppel and res judicata bar Cadle's discovery requests.   The executors also challenge the breadth and scope of the document requests..  FN3. The substantive issues include a claim that both the doctrines of collateral estoppel and res judicata bar Cadle's discovery requests.   The executors also challenge the breadth and scope of the document requests.

FN4. To conclude otherwise would be to convert the authorized subpoena power into a tool through which third-party discovery could be obtained outside the deposition process.   See, cases cited infra., at pp. 8–9..  FN4. To conclude otherwise would be to convert the authorized subpoena power into a tool through which third-party discovery could be obtained outside the deposition process.   See, cases cited infra., at pp. 8–9.

FN5. The statute does not include a motion to compel either the appearance of the deponent or the production of records..  FN5. The statute does not include a motion to compel either the appearance of the deponent or the production of records.

FN6. Most cases discussing the issue, do so in the context of the practice book provisions governing the issuance of subpoenas for deposition, specifically, Section 13–28(c).  That section specifically requires that the subpoena may require the production of records “at the deposition.”   Cadle argues that the Practice Book does not apply to probate court proceedings and that its authority derived from Conn. Gen.Stat. § 52–148e.   In light of the court's ruling, the court does not decide whether P.B. Section 13–28(c) has application to Cadle's subpoenas..  FN6. Most cases discussing the issue, do so in the context of the practice book provisions governing the issuance of subpoenas for deposition, specifically, Section 13–28(c).  That section specifically requires that the subpoena may require the production of records “at the deposition.”   Cadle argues that the Practice Book does not apply to probate court proceedings and that its authority derived from Conn. Gen.Stat. § 52–148e.   In light of the court's ruling, the court does not decide whether P.B. Section 13–28(c) has application to Cadle's subpoenas.

FN7. The court notes that the Probate Rules have recently been amended to make clear that the authority to subpoena records from a deponent is for production at the deposition.   Rule 61 Discovery..  FN7. The court notes that the Probate Rules have recently been amended to make clear that the authority to subpoena records from a deponent is for production at the deposition.   Rule 61 Discovery.

FN8. The court does not decide whether the service of the subpoena within 15 days of the date on which production was commanded is an alternative basis upon which to grant the motion to quash, as to do so is unnecessary..  FN8. The court does not decide whether the service of the subpoena within 15 days of the date on which production was commanded is an alternative basis upon which to grant the motion to quash, as to do so is unnecessary.

FN9. Sending a copy of the subpoena to the witness' lawyer, in the absence of an agreement that counsel will accept service on the witness' behalf, is not a basis upon which the court can find the Burrows standard for service met..  FN9. Sending a copy of the subpoena to the witness' lawyer, in the absence of an agreement that counsel will accept service on the witness' behalf, is not a basis upon which the court can find the Burrows standard for service met.

FN10. Whether Cadle appeals this court's decision or begins anew before the probate court, the court is mindful that the substantive issues may well be before this court in the future.   However, if Cadle proceeds in the probate court, any future determinations by this court will regard events which have not yet unfolded, rendering a decision on the substantive issues unnecessary and arguably advisory in nature.   If Cadle appeals this court's decision and prevails, the substantive issues are still preserved upon remand..  FN10. Whether Cadle appeals this court's decision or begins anew before the probate court, the court is mindful that the substantive issues may well be before this court in the future.   However, if Cadle proceeds in the probate court, any future determinations by this court will regard events which have not yet unfolded, rendering a decision on the substantive issues unnecessary and arguably advisory in nature.   If Cadle appeals this court's decision and prevails, the substantive issues are still preserved upon remand.

Dooley, Kari A., J.