Opinion
No. CV07-4027616S
November 19, 2007
Memorandum of Decision
Before this court is the motion for summary judgment and memorandum of law filed in this appeal from probate by the plaintiffs/appellants dated April 5, 2007. The defendant/appellee filed her memorandum of law in opposition to the motion for summary judgment on May 30, 2007. This court heard oral argument on July 10, 2007. At the request of the court, the parties filed supplemental briefs on July 31, 2007 to address the issues of 1) whether the appeal should proceed as an "on the record" appeal or by trial de novo and 2) whether summary judgment is an appropriate procedural vehicle in probate appeals.
The plaintiffs/appellants are co-trustees of the Rena Sobol Ackerman Trust [hereinafter, "trust"], who have appealed the second of two decisions rendered by the probate court. The first decision, which neither party has appealed, granted the petition of Rena Sobol Ackerman to remove her mother and defendant/appellee, Ruth Sobol, as Co-Trustee of the trust. The plaintiffs/appellants, however, appeal the second decision, to the extent that the probate court charged to the trust attorneys fees incurred by the defendant/appellee, notwithstanding the court's removal of her based, in part, on its finding that she had a conflict of interest.
Procedural Issues
Before the court addresses the motion for summary judgment, the court first determines whether the appeal should proceed as an "on the record" appeal or by trial de novo. Clearly the distinction is a threshold issue for the court. Where the appeal is trial de novo, the superior court's role is clear and well established. As observed by our Supreme Court in Kerin v. Stangle, 209 Conn. 260, 264, 550 A.2d 1069 (1988), "[t]he 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.'"
On the record appeals are, nevertheless, statutorily authorized. General Statutes § 45a-186(a) states, in relevant part: "Any person aggrieved by an order, denial or decree of a court of probate in any matter . . . may appeal therefrom to the Superior Court Appeals from any decision rendered in any case after a record is made under sections 51-72 and 51-73 shall be on the record and shall not be a trial de novo." In such instances, the superior court reviews a probate court decision using an abuse of discretion standard. Andrews v. Gorby, 237 Conn. 12, 675 A.2d 449 (1996).
The defendant/appellee claims that this matter should proceed as a record appeal because it is undisputed that such a record was created for both hearings over ten days before the probate court. Given that the only decision on appeal is the second decision however, its record consists of only two days of hearing. Nevertheless, the probate court wrote a nineteen-page single-spaced memorandum of its second decision incorporating its findings drawn from both hearings and proceedings occurring over the course of the litigation before it. As such, from the point of view of judicial economy and the fact that the central issue revolves around the appropriateness of attorneys fees drawn from the trust, the defendant/appellee's claim is an appealing one. The plaintiffs/appellants however, assert that notwithstanding those transcripts, it is undisputed that there was no written agreement for such transcripts and hence, this appeal must proceed as a trial de novo.
This court agrees. As noted above, General Statutes § 45a-186(a) conditions an "on the record" appeal where the "record is made under sections 51-72 and 51-73" of the General Statutes. General Statutes § 51-72 states, in relevant part: "Whenever, in any court of probate, the parties or their attorneys so agree in writing, the judge of the court may call in a competent and disinterested person who is capable to act as a stenographer to act as the official stenographer in the whole or in such portion of the cause or matter as may be agreed upon." (Emphasis added). Thereafter, General Statutes § 51-73 addresses, inter alia, the powers and duties of a stenographer acting pursuant to § 51-72, stating in relevant part, "[a]ppeals from any decision rendered in any case after a record is made under this section and section 51-72, shall be on such record, and shall not be a trial de novo." (Emphasis added.)
Read together, both statutory provisions reflect the legislature's intention that a written agreement is a precondition to an "on the record" appeal. Moreover, citing these same provisions, at least one superior court decision has so held that the absence of a written agreement, notwithstanding the apparent existence of transcripts of the probate proceeding, requires that the appeal should proceed de novo in Superior Court. Geisel v. Durkin, Superior Court, judicial district of Hartford, Docket No. 020818949 (May 18, 2004, Beach, J.). In that case, the court further observed that "parties are entitled to rely, in most instances, on the ability to proceed de novo on appeal. The signing of an agreement pursuant to § 51-72 serves the purpose, inter alia, of waiving that expectation. In the absence of the written agreement, however, the expectation is not waived." Id. See also Bussolotti v. Estate of John Turek et al, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 250997 (May 7, 1990, Thim, J.), and Scinto et al v. Appeal from Probate, Superior Court, judicial district of Fairfield, Docket No. 030400636 (December 1, 2003, Dewey, J.).
The defendant/appellee claims that the "written agreement" requirement is merely germane to the issue of sharing costs for transcription services, given that these provisions are found in the chapter on court reporters of the General Statutes. Given no other supporting authority for this claim, however, the court cannot credit it.
The defendant/appellee further calls this court's attention to the recently enacted amendment to General Statutes § 45a-186, as embodied in Public Act 07-116, effective October 1, 2007. Indeed, Public Act 07-116 extensively amends the statutes governing the probate courts, but primarily focuses on Chapter 802h, Protected Persons and Their Property. While it is true that the legislature added significant provisions to General Statutes § 45a-186 regarding when a record appeal is triggered and the implications, the legislature did not amend General Statutes §§ 51-72 and 51-73, which are the relevant statutes for purposes of the case before this court. See generally Public Act 07-116.
Indeed, a review of the new legislation indicates that recordings and on the record appeals are now mandated for certain areas of probate jurisdiction, but not all. For example, the legislature clearly and unequivocally voiced its intention to ensure that recordings were made in all conservator proceedings under General Statutes §§ 54a-644 — 45a-663. Public Act 07-116, § 11. Moreover, General Statutes § 45a-186(a) was amended to ensure that, in addition to conservator hearings under General Statutes § 45a-650 as amended, any recording of commitment hearings pursuant to General Statutes §§ 17a-498 and 17a-685, would also be on the record appeals and not a trial de novo. Specifically, General Statutes § 45a-186(a), as amended by Public Act 07-116, reads in relevant part: "[a]ppeals from any decision rendered in any case after a recording is made of the proceedings under section 17a-498, 17a-685, 45a-650, as amended by this act, 51-72 or 51-73 shall be on the record and shall not be a trial de novo." While the legislature apparently added commitment and conservator hearings to that limited universe of record appeals, it added no other areas of probate jurisdiction, and left intact General Statutes §§ 51-72 and 51-73.
Thus this court is left to conclude that aside from hearings pursuant to General Statutes §§ 17a-498, 17a-685, and 45a-650, as amended by Public Act 07-116, all other probate hearings, including the one before this court relating to the removal of a trustee pursuant to General Statutes § 45a-242, require a written agreement between the parties before it is heard before the superior court on the record, as opposed to trial de novo, on appeal. As such, the defendant/appellee's assertions that the Public Act 07-116 must apply retroactively is immaterial since even if retroactive, it would not change the operation of General Statutes §§ 51-72 and 51-73 as applied to this case.
Having concluded that this matter should proceed as a trial de novo, the court also finds that a motion for summary judgment is an appropriate procedural mechanism. As the Court in Kerin v. Stangle, supra, 209 Conn. 263-64, observed, "[a]n appeal from 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. In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common law jurisdiction, but of a Probate Court." At the same time, Practice Book § 10-76 which specifically addresses procedure in probate appeal, dictates that "in all appeals from probate the appellant shall file reasons of appeal, which upon motion shall be made reasonable specific, within ten days after the return day; and pleadings shall thereafter follow in analogy to civil actions." (Emphasis added.) While Practice Book § 10-76 may undergo in the future substantial revision to conform to Public Act 07-116, it is certainly applicable for purposes of this de novo probate appeals. As such, the court concludes that in light of this authority and as the defendant/appellee concedes with respect to de novo appeals, summary judgment is an appropriate vehicle to hear the issues presented by the plaintiffs/appellees.
Motion for Summary Judgment
In considering a motion for summary judgment, the court must determine whether the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and, if so, whether the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 289-90, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003), quoting H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-59, 783 A.2d 993 (2001). "A `material' fact has been defined adequately and simply as a fact which will make a difference in the result of the case." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969).
In their motion for summary judgment, the plaintiffs/appellants claim that their appeal should be sustained and that all claims for reimbursement of fees and expenses' from the trust for the defendant/appellee's defense should be disallowed. The plaintitffs/appellants base their claim on the assertions that 1) because the defendant was in fact removed from office, her fees and expenses are, as a matter of law, not in the interest and benefit of the trust, and 2) because of the reasons for the defendant's removal, her defense of the removal proceedings, as a matter of law, was not reasonable.
In support of their motion for summary judgment, the plaintiff/appellant attaches he decisions of the probate court, respectively issued on December 7, 2005 [hereinafter "2005 decision"], and December 12, 2006 [hereinafter "2006 decision"]. In the 2005 decision, the probate court found the following facts. In August 1990, Sam and Ruth Sobol formed a partnership by entering into a written agreement between themselves and their five children, one of whom included Rena Sobol Ackerman. Each of the partners were to contribute parcels of real estate to the partnership in exchange for a percentage interest in the partnership, with the aggregate value of all contributed property at the time of the contribution amounting to $20,558,000. Rena Sobol Ackerman received an initial 8.13 percent general partnership interest.
In December 28, 1990, Rena Sobol Ackerman established a trust for the benefit of her minor children, and executed an Assignment and Assumption Agreement in which she transferred a 6.03 percent interest in the partnership to the trust. The trust document named Sam Sobol and Connecticut National Bank as Co-Trustees and Ruth Sobol as Successor Co-Trustee. In 1991, Sam Sobol appointed Rena Sobol Ackerman as Successor Trustee in the event that neither Sam Sobol or Ruth Sobol ceased to act as trustee.
On October 4, 2001, Sam Sobol and Ruth Sobol entered into a contract with Sobol Management Company, owned and operated by their son, Ephraim Sobol. Sobol Management Company would receive from the partnership management fees, and a percentage of the annual gross rentals and sales of the property. On that same date Ephraim Sobol was also named successor sole Managing General Partner of the partnership.
Following a review of financial records pertaining to the partnership, Rena Sobol Ackerman concluded that the trust received no monetary distributions from the partnership between 1990 and 2002, although substantial distributions were made from the partnership to the other partners. On May 27, 2003, Rena Sobol Ackerman filed a lawsuit in Hartford Superior Court against the Sobol Family Partnership, LLP, Ephraim Sobol and Sobol Property Management alleging breach of fiduciary duty and violation of General Statutes § 42-110a et seq. (Connecticut Unfair Trade Practices Act).
On October 22, 2002, Rena Sobol Ackerman petitioned the probate court for the removal of Sam Sobol as Trustee and the disqualification of Ruth Sobol as Successor Trustee, based on, inter alia, Sam Sobol's failure to make income distributions to the trust. On January 21, 2003, Sam Sobol resigned as Trustee and Ruth Sobol succeeded as Trustee. In an effort to settle the matter, counsel for Ruth Sobol advised the court that a deposit of $1 million was deposited into the trust and that $228,541 would also be deposited pursuant to the demand by Rena Sobol Ackerman. On March 12, 2003, the court issued an order, following a hearing on March 10, 2003, that Ruth Sobol continue to serve as trustee.
On October 29, 2003, Sam Sobol died. Subsequently, Ruth Sobol was appointed Personal Representative of the Estate of Sam Sobol [hereinafter "Estate"] and on January 20, 2004, the general partners of the partnership were officially informed of his death and the dissolution of the partnership.
On April 30, 2004, counsel for Ruth Sobol suggested that an interim Co-Trustee be appointed for the limited purpose of determining whether a claim against the Estate of Sam Sobol should be filed, notwithstanding their position that pursuing such a claim would be a waste of trust assets, given the insolvency of the estate. After his appointment as Co-Trustee, Attorney Alfred Cassella was ordered to file a claim against the Estate, to which objections were filed by Ruth Sobol in her capacity as Persona Representative of the Estate. A lawsuit arising out of this claim was filed in Hartford Superior Court, with a return date of September 21, 2004.
Trial before the probate court on the removal petition was held on December 1, 2004, February 3, 2005, February 22, 2005, February 23, 2005, March 4, 2005, March 7, 2005, and June 9, 2005.
In its 2005 decision, the probate court made extensive findings in support of its decision to remove the defendant/appellee as Co-Trustee of the trust. With some qualifications, the parties agree that this decision is res judicata, or at least, its underlying facts and findings are undisputed for purposes of this motion. The probate court removed the defendant/appellee based on her conflict of interest pursuant to General Statutes § 45a-242(a)(1), her lack of cooperation with the other Co-Trustee pursuant to § 45a-242(a)(2) and its finding that there was a change of circumstances pursuant to § 45a-242(a)(4). The probate court, however, also dismissed three other grounds for removal, i.e. neglect in performing her duties to the trust pursuant to General Statutes § 45a-242(a)(1); removal based on waste of trust assets, pursuant to General Statutes § 45a-242(a)(1) and removal based on unfitness to serve, pursuant to § 45a-242(a)(3). With respect to the conflict of interest ground in particular, the court disagreed that the appointment of Attorney Cassella as Co-Trustee cured the defendant/appellee's conflict of interest, to the extent that the evidence demonstrated that Ruth Sobol would not cooperate with ongoing litigation in the Trust's claim against the Estate.
In its 2006 decision on the issue of whether the defendant/appellee's defense costs were properly charged to the trust, the probate court concluded that if the defendant/appellee can show that she incurred litigation expenses in good faith and exercised care and prudence in pursuing her defense, such costs are appropriately payable out of the trust assets. Basing its decision on two days of hearing as well as its own observations of the litigants over ten status conferences and eight days of hearings on the removal petition, the probate court approved much of the claimed litigation expenses finding they were incurred in good faith and were necessary. The second decision is the subject of what this court has found should proceed as a trial de novo on appeal, however, the probate court's findings and conclusions of law may not be considered. As noted above by the court in Kerin v. Stangle, CT Page 19671 supra, 209 Conn. 260, the superior court is forced to decide the appeal as an original proposition unfettered by, and ignoring, the result reached in the probate court. Indeed, evidence not introduced in the probate hearing might very well be introduced before the superior court hearing the case de novo. Baskins Appeal from Probate, 194 Conn. 635, 641, 484 A.2d 934 (1984).
As such, this court may only grant summary judgment if the plaintiffs/appellants can establish that the probate court findings in the removal hearing, as a matter of law, preclude the defendant/appellee from charging her litigation expenses to the trust. The question of law then before this court, now acting as a probate court, is the legal standard by which the defendant/appellee can properly charge her litigation expenses to the trust when she is defending the propriety of her role as a trustee. In discerning that standard, the parties agree that the relevant authority for this court lies in the cases of Robbins v. Wolcott, 27 Conn. 234 (1858), Clement's Appeal from Probate, 49 Conn. 519 (1882), Weidlich v. Weidlich, 151 Conn. 471, 199 A.2d 336 (1964), Ramsdell v. Union Trust Co., 202 Conn. 57, 519 A.2d 1185 (1987), and In re Andrews' Appeal from Probate, 78 Conn.App. 441, 826 A.2d 1267 (2003).
Prominent among these cases is Clement's Appeal from Probate, supra, 49 Conn. 519, in which our Supreme Court considered whether the executor of the will of an estate may properly charge to the estate litigation expenses he incurred in defending suit brought against him. The court held: "To justify charging the expense of defending that suit it should appear that it was defended in the interest and for the benefit of the estate. Confessedly there was no defense; in some other manner therefore must the executor show that he acted in good faith. The burden is on him. The mere fact that counsel advised him that he had a defense is not sufficient; he should go further, and disclose not only the nature but the grounds of the defense; at least enough to enable the court to see that he acted reasonably. In this he fails. It is not found expressly that he acted in bad faith; neither is it found affirmatively that he acted in good faith; while the facts which do appear, in the absence of satisfactory explanation, tend strongly to the conclusion that he did not exercise that degree of care and prudence that men ordinarily exercise in respect to their own affairs." Clement's Appeal from Probate, supra, 49 Conn. 530-31.
As the above passage reflects, and contrary to the assertions of the plaintiffs/appellants, the court in Clement's Appeal from Probate did not disallow litigation expenses because the executor failed to establish that his defense was in the interest and for the benefit of the estate. Instead, the court held that in failing to establish that his defense was in the interest and benefit of the estate, the burden was then on the executor to establish that his defense was nevertheless pursued in good faith and that there was some basis for the court to determine that his defense was reasonable. In the absence of a satisfactory explanation for pursuing his defense, the court concluded, that the executor did not exercise that "degree of care and prudence that men ordinarily exercise in respect to their own affairs." Id. at 531. Only when the executor failed to meet his burden of good faith and reasonableness were the expenses disallowed. Id. See also Hewitt v. Beattie, 106 Conn. 602, 613, 138 A. 795 (1927) (citing Robbins v. Wolcott, supra, 27 Conn. 238, "obligations incurred by reason of positive misconduct or violation of duty on his part would not be allowed to him; although, if he acted reasonably and in good faith, the mere fact that, as later appeared, he had misjudged the situation or incurred expenses unnecessarily, would not prevent their allowance to him.").
In citing to Clement's Appeal from Probate, the court in Weidlich v. Weidlich, supra, 151 Conn. 471, did not depart from the standard of good faith and reasonableness; it simply never reached the issue. In that case, the fiduciary prevailed in defending his right to act as a fiduciary, and as such, was able to establish that his defense was in the interest and for the benefit of the principle. Id. "If the litigation being defended challenges the right of a fiduciary to act for his principal, a vindication of that right is of necessity in the interest of the principal, and the fiduciary is entitled to indemnification for the expense of the defense." Id. at 473. Thus while Weidlich stands for the obvious proposition that a vindication of a fiduciary's defense per se establishes that said defense was in the interest and for the benefit of the principle, it does not, as the plaintiffs/appellants assert, hold or even suggest that the opposite is true; i.e. that a fiduciary who fails in defense of his conduct should be disallowed litigation expenses he incurred in said defense.
In Ramsdell v. Union Trust Co., supra, 202 Conn. 57, the Supreme Court reversed the trial court for failing to remove an executor notwithstanding evidence of a clear conflict of interest of the defendant in executing its fiduciary obligations to the estate. In that case, the court only briefly addressed the issue of whether the trial court improperly failed to approve the defendant's litigation expenses, stating that while "the trial court properly recognized that the defendant may not be entitled to reimbursement from the estate . . . the defendant may seek reimbursement for its litigations expenses by presenting a claim for them before the successor fiduciary." CT Page 19673 Id. at 74. Indeed, the court articulated no legal standard by which to assess the appropriateness of charging litigation expense to the estate. Moreover, notwithstanding the finding of a conflict of interest, the court also did not find that the defendant was, per se, precluded from seeking reimbursement from the estate. Id.
In the case of In re Andrews' Appeal from Probate, supra, 78 Conn.App. 441, the plaintiff, as the executor of an estate, appealed the decision of the trial court, which found that the estate had no duty to pay an executor's legal fees resulting from litigation concerning the amount of the executor's fee. Although the court regarded the case as one of first impression, it affirmed the trial court to the extent that it found that the fee dispute neither benefited the estate nor was pursued in good faith. Id. 447-48. In a footnote, the court also criticized the plaintiff's reliance on Hewitt v. Beattie, supra, 106 Conn. 602, observing such reliance is misplaced in the absence of the court finding good faith. Moreover, the facts of In re Andrews' Appeal from Probate case are significant in that the plaintiff/executor initiated the litigation, seeking to increase the amount of fees awarded by the probate court, whereas the fiduciaries in the cases discussed heretofore were all defending the conduct that was the subject of litigation. As such and to the extent that the court also considered attorneys fees in light of the prevailing standards for appropriate compensation for executors generally, this court therefore finds In re Andrews' Appeal from Probate of limited relevance in the case before the court. At the same time, the court underscored throughout the decision the pivotal issue of the lower court's inability to find that the plaintiff met his burden on the issue of good faith.
The court thus finds that the Supreme Court's decision in Clement's Appeal from Probate articulates the operative legal standard by which this court must evaluate the claims of the parties and that its progeny did not substantially alter that standard as applied to the facts in this case. As such, this court holds that in order for the defendant/appellee to prevail, she must establish that her defense was pursued in good faith and was reasonable. Conversely, the plaintiffs/appellants' must establish in order to prevail in their motion for summary judgment, that there are no material issues of fact in dispute and that the defendant/appellee, as a matter of law, cannot establish that the defense was pursued in good faith and was reasonable.
The plaintiffs/appellants do not challenge the probate court's good faith finding for purposes of summary judgment, arguing simply that the standard requires more than good faith. Instead, the plaintiffs/appellants' assert that the defendant/appellee is not entitled to attorneys fees because in pursuing her defense of the removal action, the conduct was as a matter of law unreasonable in light of the subsequent finding by the probate court that she had a conflict of interest.
This court, however, cannot find that the defendant/appellee's decision to defend the removal action is unreasonable as a matter of law. Our Supreme Court has observed that "[t]he existence of a potential conflict of interest does not, of itself, mandate removal of the defendant as executor. Removal of an executor is an extraordinary remedy designed to protect against harm caused by the continuing depletion or mismanagement of an estate. In the absence of continuing harm to the interests of the estate and its beneficiaries, removal is not justified merely as a punishment for a fiduciary's past misconduct." Ramsdell v. Union Trust Co., supra, 202 Conn. 66-67. If removal based on a potential conflict of interest is not a foregone conclusion, it follow that a fiduciary might reasonably believe that a potential conflict of interest may not require her removal.
Moreover, the defendant/appellee argues that, in light of the good faith and reasonableness standard, her decisions relevant to pursuing her defense must be evaluated at the time those decisions were made. Indeed, Robbins v. Wolcott, supra, 27 Conn. 238, supports the defendant/appellee's claim: "[a]s to disbursements which ultimately prove to have been unnecessary, we do not mean to say that they are not to be allowed, if, when they were made by him, there was good reason to believe that they were necessary for the interest of those concerned in the estate, and they were made in good faith." (Emphasis added.)
Significantly, in its first decision, upon which the parties agree this court can rely, the probate court was faced with an analogous argument with respect to the plaintiffs/appellants' claim before this court; i.e. that the defendant/appellee were wasting trust assets by incurring attorneys fees in defense of the removal petition. In dismissing that claim, the probate court, whose decision encompassed comprehensive findings of fact in support of the dismissal of three grounds for removal, while granting removal on three counts, specifically found that there was "no showing that the defense of the removal petition by [the defendant/appellee was] needless or futile."
In Dugan v. Mobile Medical Testing Services, 265 Conn. 791, 815, 830 A.2d 752 (2003), our Supreme Court observed "[w]e have held that summary judgment is appropriate only if a fair and reasonable person could conclude only one way. To succeed on a motion for summary judgment, [t]he movant must show that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on he evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) It is well established law that "reasonableness is a question of fact for the trier to determine based on all of the circumstances." Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 580, 657 A.2d 212 (1995). Where the issue of reasonableness requires this court to consider all the circumstances surrounding the defendant/appellee's decision to defend the removal action, this court cannot find, as a matter of law, in favor of the plaintiffs/appellants.
The motion for summary judgment is denied.