Opinion
FSTCV156026286S
04-02-2018
Linda SOLON v. Joseph SLATER
UNPUBLISHED OPINION
OPINION
POVODATOR, J.
The court has before it the plaintiff’s motion to reargue. The court previously granted the defendants’ motions for summary judgment with respect to two counts, determining that the outcome of a probate challenge to admission of a will was entitled to preclusive effect in a subsequent action brought by the widow of the testator (where an additional factor is that there was a presumptively-valid prenuptial agreement in effect at the time of the testator’s death), claiming tortious interference. Somewhat oversimplified, the plaintiff was claiming that notwithstanding a facially valid prenuptial agreement and a recent will that had survived a challenge in probate, the plaintiff should be allowed to claim tortious interference with the dispositional intent of her late husband (a marriage of less than a year’s duration).
Solon v. Slater, No. FSTCV156026286S, 2018 WL 632344 (Conn.Super.Ct. Jan. 8, 2018). The decision also can be found at http://civilinquiryjud.ct.gov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=13699741
The standards governing a motion to reargue are well-established.
[T]he purpose of a reargument is ... to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts ... It also may be used to address alleged inconsistencies in the trial court’s memorandum of decision as well as claims of law that the [movant] claimed were not addressed by the court ... [A] motion to reargue however] is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument. GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 184 (2013) (citations and internal quotation marks, omitted).
The plaintiff has not identified any " decision or some principle of law which would have a controlling effect, and which has been overlooked" nor does she identify any material misapprehension of facts nor does she identify any material inconsistencies nor does she identify issues that the court failed to address. The plaintiff disagrees with how the court analyzed the issues, and cites additional cases claimed to support her position.
Ordinarily, the court would stop at that point, but the cases cited by the plaintiff invite further discussion. The reason is that some of the authorities upon which the plaintiff relies, and especially an Illinois decision, actually tend to support the court’s analysis.
The plaintiff cites and quotes extensively from In re Estate of Ellis, 236 Ill.2d 45, 923 N.E.2d 237 (2009). There are extensive passages quoted from that decision at pp.7-8 of the motion to reargue.
Preliminarily, it is important to recognize that the issue before the Ellis court did not involve the merits of either a will contest or a claim of tortious interference (and especially did not involve the interrelationship of the two)- the court was addressing the proper limitations period for assertion of a tortious interference claim, and was identifying the distinctions between the two theories for the purpose determining the proper limitations period that would or might apply. (" The sole issue in this appeal is the timeliness of Shriners’ tort claim." 236 Ill.2d 50, 923 N.E.2d 240.)
Over the course of pages of discussion immediately following the passsages quoted by the plaintiff, the Ellis court relied upon an earlier case, Robinson v. First State Bank of Monticello, 97 Ill.2d 174, 454 N.E.2d 288 (1983). Starting immediately after the passages quoted by the plaintiff, the court stated:
Although section 8-1 does not expressly limit a tort action, Illinois courts nevertheless have restricted the tort in certain circumstances where a plaintiff forgoes an opportunity to file a tort claim within the six-month period for a will contest. In Robinson, after the will and codicil were admitted to probate, plaintiffs entered into a settlement agreement with the estate, agreeing not to file a will contest in exchange for $125,000. More than six months later, plaintiffs filed a complaint for tortious interference with expectancy of inheritance. This court held that the tort action should have been dismissed where plaintiffs chose not to avail themselves of a will contest remedy. Robinson, 97 Ill.2d at 185, 73 Ill.Dec. 428, 454 N.E.2d 288. We stated: " In this case, where a will has been admitted to probate and where the plaintiffs have engaged an attorney to determine whether they should file a will contest, have decided not to contest the will, have entered into a settlement agreement for $125,000 (agreeing to release the other parties to the agreement * * * from any and all claims and causes of action arising from any will, codicil or other undertaking by the parties), and have allowed the statutorily prescribed period in which to contest the will to expire (thereby establishing the validity of the will), we will not recognize a tort action for intentional interference with inheritance.
* * *
Given the facts in this case, if we were to allow the plaintiffs to maintain their tort action, we would be giving them a second bite of the apple and defeating the purpose of the exclusivity of a will contest under section 8-1. Robinson, 97 Ill.2d at 184-85, 73 Ill.Dec. 428, 454 N.E.2d 288. In re Estate of Ellis, 236 Ill.2d 45, 53, 923 N.E.2d 237, 241-42 (2009).
In this discussion, which has an election of remedies and/or exhaustion of available remedies quality, the court was stating that an intentional decision to forego a probate remedy would preclude a tort remedy. In the Ellis case itself, the party seeking a tort remedy had been unaware of the submission of a will to probate such that the election/exhaustion concept was inapplicable, but here, the second bite of the apple aspect is even stronger than in Robinson, in that this court did not rely on the submission of a will to probate but rather the outcome after an adversarial proceeding.
The Ellis court then discussed a Florida case, Schilling v. Herrera, 952 So.2d 1231 (Fla.App. 2007):
The Schilling court held, however, that because the defendant’s fraud was not discovered until after probate, the plaintiff was allowed to bring a later action for damages because relief in probate was impossible. Schilling, 952 So.2d at 1236-37. Similarly, Shriners did not have a fair opportunity to pursue a remedy in probate because it was not aware of its expectancy under the earlier will, nor was it aware of Bauman’s allegedly fraudulent conduct, until after the 1999 will was admitted to probate and the six-month deadline for a will contest had expired. 236 Ill.2d 55-56, 923 N.E.2d 243.
Note that again, there was an election/exhaustion-type consideration; absent an opportunity to challenge the will, the tort remedy was allowed. Inferentially, it was only because of a lack of opportunity to challenge the will in a meaningful manner that the tort remedy was allowed.
The plaintiff’s position that the challenge of admission of a will to probate and a tort claim have no bearing on each other, then, is inconsistent with these authorities. They are independent procedures, with separate rules and purposes, but there is a level of interconnectedness that informs the issues before this court. With this somewhat broadened and more context-sensitive recitation of the Illinois Supreme Court decision, the court suspects that the plaintiff might reconsider the statement she made immediately after quoting the passages from Ellis : " We believe the Appellate Court and/or Connecticut Supreme Court would find the same way as the Illinois Supreme Court, since the action of contesting a Will in Probate in Connecticut is the same as it is in Illinois, and probably every other common-law jurisdiction."
The court must emphasize that its decision was not based merely on the availability of a probate proceeding but rather the decision of a will contest in which the plaintiff had been the party challenging admission of the will. To the extent that the plaintiff sometimes frames the issues (perhaps inadvertently) in terms of admission of the will, without the qualifier " over objection," the plaintiff does not accurately report the issue and outcome here. (For example, at page 9, the plaintiff states that " under this Court’s holding, the admission [of] a Will to Probate would automatically act to collaterally estopped every claim of interference ..." ) Given the Ellis discussion of Illinois and Florida law, it may well be true that mere admission of the will would be sufficient to bar the tort claim (assuming the plaintiff had had an opportunity to challenge the will), but again, this court did not go to that extent/extreme; this court relied on an outcome of an actual adversarial proceeding in which the plaintiff participated.
Related, to the extent that the plaintiff argues at length that Connecticut courts would recognize (should recognize) a cause of action based on tortious interference with an expected inheritance, this court did not determine that summary judgment was appropriate because there is no possible viable cause of action based on tortious interference. Rather, the court relied upon collateral estoppel which, in effect, implicitly assumed (at least for purposes of that motion) that such a cause of action is recognized in Connecticut.
The court will address one additional authority cited by the plaintiff, a recent Massachusetts trial court decision, Hanna v. Williams, No. 1684CV0722BLS1, 2017 WL 2292756 (Mass.Super. Jan. 9, 2017) , but that decision again does not fit the narrower scenario presented here. The Hanna court was addressing the viability of a claim of tortious interference, not the narrower issue of the effect of a will contest. In that decision, the court explicitly noted the seamy factual history but more importantly (for purposes of this discussion) noted that the will dispute had not resulted in any determination that might have had preclusive effect. Thus, the decision included the following description of the final decree as issued by the probate court (in turn, adopting an agreement that the parties had reached): " The Decree approved the Compromise Agreement. No finding was made in the Compromise Agreement or in the Decree regarding the validity or invalidity of the 1961 will or the 2013 will." Putting aside the question of whether a stipulation (settlement) may be entitled to collateral estoppel treatment, there had been no determination of the issue that was later sought to be litigated. Here, there had been a determination in the probate court- after a challenge by the plaintiff- relating to validity of the will being submitted, a will that had been executed approximately two months before the testator’s death. The court rejected the improper influences that the plaintiff had asserted.
Including a situation so toxic that " firms quickly determined that their employees and the firms must disclaim their beneficial interests in the will and withdraw from representation. [A party] formally waived his rights under the will. The law firm resigned as trustee."
It is unclear how such an outcome would be treated under the framework of
The court recognizes that this is a serious issue for the plaintiff. However, the plaintiff has not identified any of the bases for reargument identified in GMAC, supra . The plaintiff has not cited any compelling authority, or any authority at all, that the result of a will contest- not just the submission and acceptance of the will- is not entitled to preclusive effect. As in the Ellis case discussed above, the plaintiff is not entitled to a second bite by virtue of this litigation strategy, after she was unsuccessful in her challenge to the will in the probate court. The will, as admitted to probate, reflected the testamentary/dispositional intent of the testator, and there is no justification for what amounts to a collateral attack.
One final point: The plaintiff repeatedly asserts that tort claims are outside the purview of a probate court - which might be a valid consideration if the court had relied upon a claim of res judicata. Collateral estoppel does not focus on any particular claim (and therefore the ability of the earlier tribunal to address a particular claim cannot be controlling)- it focuses on whether a particular issue was resolved, conclusively and necessarily for the outcome before that tribunal. The case in which our Supreme Court rejected the need for mutuality in connection with collateral estoppel, Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 303, 596 A.2d 414, 424 (1991), demonstrates that claim-oriented disconnect. Aetna was a case in which a conviction in a prior criminal proceeding was given collateral estoppel effect in related civil litigation- the criminal tribunal, of course, had no ability to address issues of civil liability, especially given the absence of the plaintiff as a party. The plaintiff’s focus on the limited authority of the probate court as a decision-making tribunal, then, adds nothing to the analysis.
The court addressed this in its earlier decision. ---------
Ellis confirms that the plaintiff was entitled to only one bite at the apple, and although the route to that conclusion may have been different, the ultimate outcome- and especially the need for finality (after one bite)- is the same.
For all of these reasons, the motion is denied.
Ellis, since there was no bypass of (election against) probate review but there was no probate determination- it effectively was a stalemate on the central issue of will validity. (Analysis under res judicata might be different.)