Keith Curran v. Anna Zubkova (2015)

decision granting the petition to perpetuate testimony that “the plaintiff who brings a petition for a bill of discovery must demonstrate by detailed facts that there is probable cause to bring a potential cause of action;  he must show more than a mere suspicion ․ He also must show that there is some describable sense of wrong.”  (Internal quotation marks omitted.)  Curran v. Zubkova, Superior Court, judicial district of Windham, Docket No. CV–15–5006089–S (July 30, 2015, Calmar, J.), citing Cadle Co. v. Drubner, 64 Conn.App. 69, 73, 777 A.2d 1286 (2001).

MEMORANDUM (Motion to Reargue, # 111:  Short Calendar, October 5, 2015)

On June 26, 2015, the petitioner filed a petition to perpetuate testimony.  The petitioner sought to depose Eileen Curran for purposes of an expected action of misfeasance and/or malfeasance against Attorney Anna Zubkova for her actions while serving as voluntary conservator of the estate of Eileen Curran.  On July 24, 2015, the defendant filed an objection to the petition.  The court heard argument on July 27, 2015, and subsequently granted the petition to perpetuate testimony on July 30, 2015.  On August 13, 2015, the defendant filed a motion to reargue/reconsider based on the argument raised for the first time that the defendant is entitled to absolute quasi-judicial immunity pursuant to Gross v. Rell, 304 Conn. 234, 40 A.3d 240 (2012).  On August 14, 2015, the court granted the defendant's motion to reargue/reconsider and reargument was heard on October 5, 2015.

DISCUSSION

This court previously stated in its July 30, 2015

The Supreme Court has “repeatedly recognized ․ that when the Probate Court has expressly authorized or approved specific conduct by the conservator, the conservator is not acting on behalf of the conservatee, but as an agent of the Probate Court ․ Accordingly, when the conservator has obtained the authorization or approval of the Probate Court for his or her actions on behalf of the conservatee's estate, the conservator cannot be held personally liable.”  (Citations omitted.)  Gross v. Rell, supra, 304 Conn. 251–52.  Thus, “conservators are entitled to quasi-judicial immunity from liability for acts that are authorized or approved by the Probate Court.”  Id., 253.  “When the conservator's acts are not authorized or approved by the Probate Court ․ [there is] no reason to depart from the common-law rule that the conservator of the estate is not acting as the agent of that court, but as the fiduciary of the conservatee, and, as such may be held personally liable.”  Id., 253–54.  Therefore, “conservators are not entitled to judicial immunity when their acts on behalf of the conservatee are not authorized or approved by the Probate Court.”  Id., 254.

The court must determine if the petitioner's allegations fall within the functions of a conservator to which absolute quasi-judicial immunity would apply.  The petitioner has presented broad allegations of actions by the conservator, some of which may not be protected by absolute quasi-judicial immunity.  For example, the petitioner alleges that the defendant told Eileen Curran “that the petitioner was trying to wrongfully deprive Eileen Curran of her property ․ Eileen Curran later learned that such representation was in fact false.”  Without more information as to the content and context of these statements, the court is unable to determine whether the statements fall within the protected conduct of a conservator that was authorized and approved by the Probate Court.  Upon further discovery, such as a deposition, more information about the conservator's actions and statements may be available and the allegation may be narrowed.  It is at that point, that it could be determined whether absolute quasi-judicial immunity applies to the specific actions taken by the conservator.  Presently, the court must rely on the petitioner's broad allegations of the conservator's conduct which do not allow the court to conclude that absolute quasi-judicial immunity applies thereby eliminating all probable cause for the action.  Therefore, the court's previous ruling that the petitioner demonstrated that there is probable cause to bring a potential cause of action and the perpetuation of testimony may prevent a failure or delay of justice due to Eileen Curran's sickness or infirmity stands.

Additionally, in order for it to be said that the Probate Court ratified or approved the conservator's actions, the actions of the conservator must be brought to the attention of the Probate Court.  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, 176).  In Kidder v. Anderson, the defendants argued that “the Probate Court's approval of the final accounting ․ which was not appealed by the plaintiff ․ was implicit acceptance by the Probate Court that [the conservator had] fulfilled his duties as conservator.”  Id., 174.  The court held that “[t]he actions that the defendants claim were approved by the Probate Court are acts and/or omissions that were not brought to the attention of the Probate Court, and there can be no ratification or approval of an action that is unknown by the Probate Court.”  Id., 176.

This court, based on the petitioner's broad allegations and the lack of discovery, especially as to the conservator's statements to the conservatee, cannot determine whether the conservator's alleged actions were presented to the Probate Court.  Discovery, specifically a deposition, may illuminate the conservator's actions, which would then allow for a determination of whether absolute quasi-judicial immunity applies.

Furthermore, in Kaplan v. Caputo, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–12–6012648–S (December 22, 2014, Tobin, J.T.R.) (59 Conn. L. Rptr. 504, 504), the executor of the decedent's estate brought an action against the predecessor temporary administrator of the estate.  Among the plaintiff's allegations were claims that the defendant failed to collect and properly apply rents from the real property.  See id., 505.  The defendant sought summary judgment and cited Gross v. Rell, supra, 304 Conn. 234.  See Kaplan v. Caputo, supra, 505.  He argued that he was entitled to quasi-judicial immunity because the Probate Court approved his final account.  See id., 506.  The plaintiff responded that the court's denial of her objections to the defendant's final account “did not amount to an unequivocal approval of the defendant's conduct while serving as temporary administrator.  The plaintiff [pointed] out that the decree signed by the court ․ [stated]:  ‘the Court hereby denies [the plaintiff's] objection to the final accounting ․ filed by the [defendant] without prejudice.”  (Emphasis omitted.)  Id. The court concluded that “without having addressed the merits of [the plaintiff's] objection, and by implication the defendant's accounting, the Probate Court did not expressly approve or authorize the temporary executor's conduct, which comprise[d] the basis of the plaintiff's ․ Superior Court action.”  Id., 506–07.

In the present case, according to the representations made by both parties, the final accounting has not been approved by the Probate Court.¹  Thus, the court cannot conclude that all of the defendant's actions as alleged by the petitioner are protected by quasi-judicial immunity.

CONCLUSION

The court's original decision granting the petition to perpetuate testimony stands.

THE COURT

CALMAR, J.

FOOTNOTES

FN1. The petitioner's objection to the defendant's motion to reargue states, “Zubkova's [o]bjection of July 24 explicitly acknowledged the fact that she had not yet been conferred immunity for the entire term of the conservatorship (‘The only remaining issue is [approval of] the final account.’).”  The defendant's July 24, 2015 objection to the petition to perpetuate testimony does in fact state that “[t]he only remaining issue is the final account.”.  FN1. The petitioner's objection to the defendant's motion to reargue states, “Zubkova's [o]bjection of July 24 explicitly acknowledged the fact that she had not yet been conferred immunity for the entire term of the conservatorship (‘The only remaining issue is [approval of] the final account.’).”  The defendant's July 24, 2015 objection to the petition to perpetuate testimony does in fact state that “[t]he only remaining issue is the final account.”

Calmar, Harry E., J.