Opinion
No. CV 05-4011532 S
June 26, 2007
MEMORANDUM OF DECISION
This matter is an appeal of an order from the probate court, district of Fairfield, which approved reimbursement of the co-conservators for their legal fees and expenses in defending themselves against a malicious prosecution claim brought by the plaintiff. The probate decree and order which are the subject of this appeal are the following:
Upon application of the Co-Conservators of the Estate, George T. Heussner, Jr., and Gregory A. Hayes, for authority to pay certain fees and costs in connection with defending the estate and the conservators from and litigation brought by the Ward's daughter, Janet Heussner, who removed over 400 items of Ward's property from Ward's home. Such wrongful takings were contrary to the Court's order that no property be taken from the Ward, and orders of the Conservators and were harmful to the Ward and her estate.
The Co-Conservators were charged with protecting the Ward's health and welfare and preserving her property and estate.
The Co-Conservators have a fiduciary duty to recover from Janet Heussner those wrongfully taken assets of the estate and they acted diligently, properly and in good faith in all their actions in furtherance of their duties.
The fees and costs requested are fair and reasonable.
And it is ORDERED AND DECREED that:
CT Page 11334
The Co-Conservators of the Estate, George T. Heussner, Jr., and Gregory A. Hayes, be and hereby are authorized and empowered to pay the sum of $15,504.35 from said estate for legal fees and costs incurred in defense of Janet Heussner v. Day, Berry and Howard, LLP, et al., through today, the date of this decree, and such as needed from time to time in connection with this matter and any other like matter.
Since the institution of this matter, the appellate court has heard and decided an appeal of the underlying action brought by the plaintiff, Heussner v. Day, Berry Howard, LLP, 94 Conn.App. 569 (2006), cert. den., 278 Conn. 912 (2006). A fair reading of that decision dictates that this court is collaterally estopped from re-litigating issues that were not appealed from earlier findings of the probate court. The court specifically held:
In order for the collateral estoppel doctrine to apply to preclude the plaintiff's action for malicious prosecution, it was sufficient that the issue of the plaintiff having taken property belonging to Anastasia Heussner, without permission of the conservators, was litigated at the hearing and decided by the Probate Court. In fact, the Probate Court found that the property had been `wrongfully taken' by the plaintiff. The establishment of that fact in the Probate Court proceeding was fatal to the plaintiff's successful prosecution of a claim for malicious prosecution. Moreover, the determination of that issue was necessary in order for the Probate Court to order the plaintiff to return to the conservators the items that she had taken from Anastasia Heussner.
We therefore conclude that the plaintiff's claim that the defendant Hayes, as an agent of the defendant law firm, falsely and maliciously and without probable cause told the police that the plaintiff took property from Anastasia Heussner, was actually litigated and necessarily determined in the Probate Court proceeding and is, therefore, barred by principles of collateral estoppel." Id. 94 Conn.App. 569, 578-79.
In the reasons for appeal filed by the plaintiff on October 24, 2005, the plaintiff's first three claims of error by the probate court are matters that the appellate court has previously found that were actually litigated and necessarily determined in a prior probate court proceeding, and is barred by principles of collateral estoppel. Therefore, the only issues to be decided by this court on appeal are the court authorization for the co-conservators to pay the legal fees and expenses, and whether the fees and costs were fair and reasonable.
The Superior Court's authority to hear an appeal from the probate court is found in General Statute § 45a-186. This statute reads in part that "(a)ny person aggrieved by any order, denial or decree of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the Superior Court." This statute further provides that "(a)ppeals 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." The court finds that no record of the proceedings in the Probate Court was made, thus the court heard this matter as a trial de novo.
"An appeal from probate is not so much an "appeal" as a trial de novo with the Superior Court sitting as a Probate Court and restricted by a Probate Court's jurisdictional limitations . . . Although the Superior Court may not consider events transpiring after the Probate Court hearing . . . it may receive evidence that could have been offered in the Probate Court, whether or not it actually was offered." Gardner v. Balboni, 218 Conn. 220, 225 (1991). Thereafterupon "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." Prince v. Sheffield, 158 Conn. 286, 298, 259 A.2d 621 (1969); Andrews v. Gorby, 237 Conn. 12, 16, 675 A.2d 449 (1996).
The court heard evidence on May 8, 2007 and May 17, 2007, and the parties were later afforded an opportunity to file briefs. The court heard from the defendant, Attorney Gregory Hayes, the plaintiff, Janet Huessner, and Attorney Anthony M. Fitzgerald.
From the testimony elicited, the court finds that the fiduciaries expenses at issue were for the defense of a civil lawsuit which was brought by the plaintiff, Janet Huessner, for malicious prosecution. The lawsuit was successfully defended at the trial court level and through an appeal to the appellate court. The appellate court specifically found that the "Probate Court not only authorized but directed the conservators to initiate and pursue civil or criminal actions to obtain the return of the personal property taken by the plaintiff," Heussner v. Day, Berry Howard, 94 Conn.App. at 578.
"While a conservator, as any other fiduciary, may act at his peril and on his own personal responsibility, before his ward's estate can be directly obligated to pay for services rendered to that estate at the request or with the knowledge of the conservator, the Probate Court must expressly approve the necessity and propriety of the utilization of those services and the reasonableness of the charge demanded for them." Elmendorf v. Poprocki, 155 Conn. 115, 119 (1967). Since the Probate Court directed the defendants to pursue the return of personal property, they are entitled to reimbursement for the reasonable expenses in doing so, which includes the defense of a legal claim resulting from their actions.
The court additionally finds that the legal fees and expenses incurred by the fiduciaries were reasonable. The court finds persuasive the testimony of Attorney Fitzgerald. He testified that he had nearly 40 years of litigation experience and has numerous impressive credentials. He stated that his fee of $375 per hour was lower than what his contemporaries charge. The matter was handled in an expeditious manner and with favorable results. The defendant provided no credible testimony in opposition. Therefore, based upon the testimony presented, the court finds that the attorneys fees and costs incurred by the fiduciaries were fair and reasonable.
As such, the plaintiff's appeal is ordered denied.