Opinion
FSTCV156025831S
11-21-2017
William WEEKS’ APPEAL FROM PROBATE[*]
UNPUBLISHED OPINION
OPINION
A. WILLIAM MOTTOLESE, JUDGE TRIAL REFEREE
In this probate appeal the plaintiff is a conserved person within the meaning of G.S. § 45a-644(h). However, the appeal is not brought in the name of Katrina Camera, the duly appointed conservator of the estate in that capacity, but is taken by the conserved person himself through his attorney. It is also noted that the conservator of the estate has not been made a party plaintiff or defendant, nor has she sought to intervene.
Richard J. Margenot, the plaintiff’s probate court appointed attorney was joined as a defendant but was defaulted for failure to appear.
The complaint alleges that the Greenwich Probate Court acted erroneously and arbitrarily in granting the application of Eric Griffin (" Griffin") which sought compensation from the assets of the plaintiff’s estate in the amount of $20, 859.64. Griffin’s answer admits all allegations of the complaint but denies that the court granted his request for that sum. (Paragraph 8.) Curiously, he does not admit or deny the operative allegation (paragraph 9) that the decree was erroneous and arbitrary. Because Griffin has mounted a defense of the decree in his papers and argument, the court will attribute this omission to inadvertence or inexperience and will deem the allegation denied.
" [I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party." (Internal quotation marks omitted.) Macricostas v. Kovacs, 67 Conn.App. 130, 133 (2001). " The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Beaudoin v. Town Oil Co., 207 Conn. 575, 587-88 (1988). (Alternate citations omitted.) Hill v. Williams, 74 Conn.App. 656 (2003). " Whenever [the] language [of the pleadings] fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties." (Emphasis in original; internal quotation marks omitted.) Dietter v. Dietter, 54 Conn.App. 481, 489, cert. denied, 252 Conn. 906 (1999) (alternate citations omitted). Because the plaintiff has not attempted to capitalize on this error it does not interfere with his rights.
Pursuant to G.S. § 45a-186a the Probate Court transmitted to this court the record of the proceeding which consists of the following: 1) the summons and complaint; 2) Griffin’s application of March 16, 2015; 3) the finding and decree of the Probate Court of May 28, 2015 with attached certification; 4) the order of notice of hearing; 5) a letter from attorney Barbara F. Green; 6) a notice for stay with summons; 7) the transcript of hearing held April 28, 2015. None of the documents bear any letter or number designation.
The record as fleshed out at oral argument reveals that pursuant to a hearing held November 18, 2014 Griffin, with Probate Court approval, purchased from the plaintiff’s conserved estate a total of seventy-five motor vehicles consisting of thirty-eight motorcycles, eleven automobiles, twenty scooters, seven quad runners and two go-carts for the sum of $6, 375. in order to make the vehicles saleable after taking possession, Griffin needed to have ignition keys and certificates of title for each, acceptable to the Department of Motor Vehicles. However, many of the keys and titles were missing. After bringing this deficiency to the attention of the conservator of the estate and the court-appointed attorney Margenot, a search of the plaintiff’s home was conducted with the result that some but not all keys and titles needed to match up with the various vehicles were found. Consequently, Griffin, without prior approval of the Probate Court or the conservator of the estate, incurred expenses in producing the needed keys and titles for which he sought reimbursement in the amount of $20, 859.64. Griffin’s application was granted by the Probate Court on May 28, 2015 and this appeal followed.
The parties agree that at the time of the hearing and decree no inventory with appraisal reflecting the fair market value of these motor vehicles either individually or collectively had been filed as required by Section 45a-655(a).
The plaintiff’s claims of error in the decree of the Probate Court are as follows: 1) the testimony taken at the April 28, 2015 hearing upon which the decree was based was not given under oath or affirmation as required by G.S. § 45a-645b, 2) the court did not apply the rules of evidence applicable to civil matters in the Superior Court as required by that statute; 3) the decree is based on " assurances" made by attorney Margenot to Griffin that such reimbursement would be made out of the plaintiff’s estate; 4) the plaintiff’s statutory right to counsel under G.S. § 45a-649a(a) was violated. These claims will be considered seriatim.
THE STANDARD OF REVIEW
" Public Act 07-116 eliminated the usual practice prior to 2007 under which appeals from the decisions rendered by the Probate Court were trials de novo. Pursuant to G.S. § § 45a-186(a)(2) and 45a-186b a new standard of review has been created under which " [t]he Superior Court shall affirm the decision of the Court of Probate unless the Superior Court finds the substantial rights of the person appealing have been prejudiced because the findings, inferences, conclusions or decisions are: (1) In violation of the federal or state constitution or the general statutes, (2) in excess of the statutory authority of the Court of Probate, (3) made on unlawful procedure, (4) affected by other error of law, (5) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record, or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." DeNunzio v. DeNunzio, 320 Conn. 178, 190-91 (2016).
I. Testimony Not Under Oath Mandatory or Directory
Clearly, § 45a-645b commands that all testimony taken at hearings held pursuant to § 45a-644 to § 45a-667v, inclusive be given under oath or affinnation. Neither party has furnished any analysis of whether the word " shall" is mandatory or directory as used in this context. Nor does Griffin claim that the plaintiff has waived his rights under the statute. See Federal Deposit Insurance Corp. v. Hillcrest Associates, 233 Conn. 153, 173 (1995). Nevertheless, the court recognizes this as a threshold issue of statutory construction in an area where our appellate courts have not yet spoken.
The statute reads as follows: Sec. 45a-645b. Rules of evidence re hearings. Testimony. The rules of evidence applicable to civil matters in the Superior Court shall apply to all hearings held pursuant to sections 45a-644 to 45a-667v, inclusive. All testimony at a hearing held pursuant to sections 45a-644 to 45a667v, inclusive, shall be given under oath or affirmation. (Emphasis added.)
In determining whether the word " shall" as used in a statute is mandatory or directory our Supreme Court has prescribed the following procedures for our trial courts. " Our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764 (1993); Iovieno v. Commissioner of Correction, 222 Conn. 254, 258 (1992); Chairman v. Freedom of Information Commission, 217 Conn. 193, 200 (1991). In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its 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 ..." (Citations omitted; internal quotation marks omitted.) State v. Metz, 230 Conn. 400, 409 (1994). " The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience ... If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words." (Internal quotation marks omitted.) Katz v. Commissioner of Revenue Services, 234 Conn. 614, 617 (1995), 1373 (1989). The usual rule, however, is that " ‘[t]he legislature’s use of the word ‘shall’ generally evidences an intent that the statute be interpreted as mandatory.’ Todd v. Glines, 217 Conn. 1, 8 (1991)" (alternate citations omitted) (quotation marks as in original). Stewart v. Tunxis Service Center, 237 Conn. 71, 76-78 (1996).
Consideration of these guidelines points inescapably to a legislative intent that the provision is mandatory. While it may be argued that the legislature intended to secure order and dispatch in these particular kinds of probate proceedings, it is obvious that the legislature intended to accomplish much more than that. Rather, the legislature deemed the manner in which a conserved person is treated when before a probate court to be a matter of substance.
In Falvey v. Zurolo, 130 Conn.App. 243 (2011), our Appellate Court determined that § 45a-650(h), which governs the appointment of conservators, is silent as to whether the probate court was required to conduct a hearing on the record when appointing a conservator. Nevertheless, the court concluded from its examination of the legislative history of Public Act 07-116 that one of its primary goals was " to promote transparency in probate proceedings, " achieve a measure of " accountability, " " change the culture of the probate courts" and change " the culture of informality in the probate system." Clearly, the Appellate Court viewed these new statutory requirements as substantive because they go to the " essence of the thing to be accomplished, " i.e. fair, due process-like treatment of persons whose physical or mental disability necessitates the institution of these proceedings.
An examination of the transcript of the hearing of April 28, 2015 discloses that none of the testimony was taken under oath. Notwithstanding, the plaintiff states in filing # 127, which is not a part of the probate record, that at a hearing held November 18, 2014 where the Probate Court approved his purchase of the vehicles, the testimony was sworn and that the April 28, 2015 proceeding was but a continuation of the November 18, 2014 hearing. The issue is complicated by the fact that while the 2014 hearing was ostensibly on the record it was later determined that the recorder malfunctioned and therefore no record was made of that hearing. The plaintiff points specifically to the remarks of Judge Hopper made at the April 28, 2015 hearing which read as follows: Judge Hopper: " All right. So today is April 28, 2015, and we’re here in the matter of William Weeks on a request for a hearing that is dealing with a continuance that we had in the past on titles to certain vehicles and motorcycles and things and keys and expenses. But because we’re recording this because it’s a conservatorship, I’ve got to do some instructions." (Emphasis added.)
When questioned by the court at oral argument the plaintiff stated that he could not really recall whether the testimony at that hearing was under oath.
It is noted that Judge Hopper did not refer to the prior hearing as having been under oath. Even if the plaintiff’s claim is correct that the 2015 hearing was a continuation of the 2014 hearing, there is no way to establish that the testimony at the prior hearing was given under oath. The only evidence on the question is the transcript of the 2015 hearing which clearly discloses that no testimony was given under oath at that hearing. Consistent with this inference is the testimony of Jim Troy whom Griffin brought in to testify concerning the condition of the vehicles at the time he took possession. Judge Hopper stated " Now you weren’t here before (referring to the 2014 hearing), could you say your name." A reasonable inference to be drawn from that remark is that if the hearing was a continuation of the prior hearing in which Jim Troy did not participate, and if that hearing was conducted under oath, the court would have sworn him in because he was not previously sworn at the prior hearing. Applying the standards found in § 45a-186b, the absence of testimony under oath or affirmation constitutes unlawful procedure which clearly prejudiced the rights of the respondent by depriving him of his right to have the disposition of his assets determined by the presentation of reliable, probative evidence.
II. Application of Rules of Evidence
In addition to requiring sworn testimony, § 45a-645b also requires that " the rules of evidence applicable to civil matters in the Superior Court shall apply to all hearings held pursuant to § § 45a-644 and 45a-667v, inclusive." An examination of the transcript reveals that the April 28, 2015 hearing was an informal, conversational, discussion where participants spoke in random order with no attempt by the court to follow the basic rules set forth in Chapters 5 or 15 of our Practice Book to the extent that they were applicable. As a result, the hearing lacked the structure and order which the statute clearly envisions. Not only was no documentary proof introduced into evidence to support each of Griffin’s expenditures but the transcript reveals that much of the evidence consisted of inadmissible hearsay. Moreover, the witness Jim Troy mentioned above, delivered what fairly may be characterized as expert testimony devoid of even the slightest attempt to comply with our rules governing the testimony of expert witnesses. See Connecticut Code of Evidence, Sections 7-1 to 7-4. Furthermore, Katrina Camera, the conservator, participated in the hearing by telephone in an unorthodox attempt to raise some defense against Griffin’s claim. This unconventional practice compromised her effectiveness. Simply put, our rules of evidence do not contemplate a fiduciary’s participation in an adversarial evidentiary hearing by telephone conference. The court concludes that the manner in which the hearing was conducted violated substantial rights of the plaintiff guaranteed to him by § 45a-645b.
" We consistently have acknowledged the definition of a hearing provided in Black’s Law Dictionary, as " [a] proceeding of relative formality ... generally public, with definite issues of fact or of law to be tried, in which witnesses are heard and evidence presented, " and in which parties to a dispute have a right to be heard." Willimantic Car Wash, Inc. v. Zoning Board of Appeals, 247 Conn. 732, 737 (1999). It is fundamental that an evidentiary hearing requires a basic structure in which the burden of proof underlies the entire proceeding. Whether a party satisfies that burden of proof depends upon an orderly progression of evidence beginning with direct examination, continuing with cross examination, redirect, recross and ending with rebuttal if desired. This proceeding resembled a round table discussion more than a hearing.
III. The " Assurances"
As previously noted, the scope of review of a decree of a probate court is now limited to a review of the record. As such, a court must " determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable ... Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact ... Our ultimate duty is to determine, in view of all of the evidence, whether the agency [or court], in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion. (Internal quotation marks omitted.) Finley v. Commissioner of Motor Vehicles, 113 Conn.App. 417, 422-23 (2009). The substantial evidence standard is satisfied if the record provides a substantial basis of fact from which the fact in issue can be reasonably inferred. (Internal quotation marks omitted.) Prioleau v. Commission on Human Rights & Opportunities, 116 Conn.App. 776, 781 (2009)" (alternate citations omitted). Falvey v. Zurolo, 130 Conn.App. supra at 691.
The Probate Court’s decree was based on an " assurance" which attorney Margenot made to the plaintiff with regard to reimbursement for the cost of obtaining the titles and keys. Unmistakably, an attorney can bind a client to a contract Ackerman v. Sobol Family Partnership, 298 Conn. 495, 507 (2010). Whether an attorney appointed pursuant to § 45a-649a(a) can do so when the client simultaneously has a duly appointed conservator of his estate has not been raised by either party. Griffin refers to two portions of the transcript which he claims Judge Hopper relied on to justify the plaintiff’s agreement to reimburse. The first is at page 15 which reads as follows: Attorney Margenot: " The transaction itself was never clean, you know, because when I went to people to see if they could help us to get rid of this stuff, nobody would touch it because you had vehicles of various ages and models, some very old, some with tags on them but that had been sitting for a while, unknown missing titles and keys. And I remember standing there, and Mr. Griffin said to me, ‘Am I going to move this stuff? What about the titles and the keys?’ And I said, ‘Move it. We’ll work it out later, ’ okay? Famous last words. I’m sorry." (Emphasis added.)
And the transcript at page 45, Judge Hopper: " Well, I think the bottom line is- on that particular issue is if the agreement from the start was very simple, it’s as-is and it’s at your own risk, then that would be one thing. If it’s we’ll work it out, please take it, then it’s something else. And that’s what I understand was the case." (Emphasis added.)
As these are the operative statements which are determinative of whether there was an agreement to reimburse, it is necessary briefly to state the applicable principles of contract law which apply since an agreement is, of course a contract. It is fundamental that " under established principles of contract law, an agreement must be definite and certain as to its terms and requirements." Dunham v. Dunham, 204 Conn. 303, 313 (1987). " It is elementary that to create a contract there must be an unequivocal acceptance of an offer. In the case of a bilateral contract, the acceptance of the offer need not be express but may be shown by any words or acts which indicate the offeree’s assent to the proposed bargain. W.G. Maltby, Inc. v. Associated Realty Co., 114 Conn. 283, 288, Frederick Raff Co. v. Murphy, 110 Conn. 234, 239. The acceptance of the offer must, however, be explicit, full and unconditional. Woodbridge Ice Co. v. Semon Ice Cream Corporation, 81 Conn. 479, 487. And the burden rested on the plaintiff to prove a meeting of the minds to establish its version of the claimed contract. Lucier v. Norfolk, 99 Conn. 686, 699" (alternate citations omitted), Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 246 (1970). Griffin had the burden of presenting evidence that the defendant had agreed to some form of contractual commitment. " A contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties ... The mere fact that the plaintiff believed [certain actions or policies] to constitute a contract does not bind [the defendant] without some evidence that it intended to be bound to such a contract." Morrissey-Manter v. Saint Francis Hospital & Medical Center, 166 Conn.App. 510, 521 (2016).
This court concludes that the words " we’ll work it out" as uttered by attorney Margenot are about as indefinite as one can image because no attorney for a conserved person is authorized to agree to a payment no matter what the cost. Relevant to this is the evidence that the plaintiff had been issued a cease and desist order by the Greenwich Zoning Enforcement Officer to remove from the plaintiff’s property the very vehicles which Griffin bought. However, there is no evidence that the order was so urgent that it demanded such an immediate removal of the vehicles that it precluded negotiation of a fair, reasonable and determinable amount. In short, " we’ll work it out" does not constitute a substantial basis of fact from which the agreement at issue can be reasonably inferred. The decision of the Probate Court was clearly erroneous as it was not supported by " reliable, probative and substantial evidence." G.S. § 45a-186b(5).
IV. Violation of the Right to Counsel
G.S. § 45a-649a provides that a " conserved person ... who is subject to proceedings subsequent to the appointment of a conservator pursuant to an application for involuntary representation shall have the right to be represented by an attorney ..." (emphasis added). This statutory right implicates the scope of an attorney’s duty to his client. As a duly appointed attorney, Margenot owed his client " a duty of undivided loyalty." Mazzochi v. Beck, 204 Conn. 490, 495 (1987). " An attorney’s primary duty is the robust representation of his client" (emphasis added). Id. at 497. The relationship is so special that it has been referred to as one of " sanctity." Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 496 (1995). It has also been characterized as " highly fiduciary." Matza v. Matza, 226 Conn. 166, 184 (1993).
The plaintiff requests that the court take judicial notice of two filings in the office of the Connecticut Secretary of State. These show that at the time of the probate proceeding attorney Margenot was the designated agent for service of process for two corporations in which Griffin had a controlling interest, namely Shore Winds, LLC for which he is listed as " managing member" and Home Services America, LLC for which he is designated the " sole member." This court may take judicial notice of public records on file with state agencies. West Hartford v. Freedom of Information Commission, 218 Conn. 256, 264 (1991). The plaintiff buttresses this request by citing to G.S. § 45a-186a(c) which in pertinent part provides as follows: " If alleged irregularities in procedure before the court of probate are not shown in the record or if facts necessary to establish such alleged irregularities in procedure are not shown in the record, proof limited to such alleged irregularities may be taken in the Superior Court." This court agrees with the plaintiff that this provision is further authority to support judicial notice of the documents.
At oral argument the plaintiff disclosed that attorney Margenot has represented him in the past and that attorney Margenot is his brother-in-law. The plaintiff argues that this accounts for the fact that Margenot " advocated for Mr. Griffin not his client, Mr. Weeks" and cites to the following excerpt from the transcript. Attorney Margenot: " So what are we talking about? Are we talking about a fabulous used car lot, or we talking about junk that needs to be removed to preserve the estate? So let the Court take note of our own- of our own records.
You know, I just want to allay this notion that somehow this fellow [Griffin] has done something improper, okay? ... It’s not the case at all. He’s benefited the estate. In fact, I have to tell you that as Week’s lawyer, I have to object to any money being paid because he objects to being thrown ... out of his house, he objects to having his stuff sold ... for the record, I have to object but ... It’s not the right position given the way it went down. (P. 40-1.)
I just have one sentence. You know, in closing, someone’s going to be out money. It’s either the Week estate or it’s going to be Mr. Griffin. And ... Mr. Griffin ... did nothing in order to be put in this position, so he shouldn’t be the one that’s going to be out money ." (P. 45.) (Emphasis added.)
From this excerpt it is apparent that attorney Margenot recognized his duty to his client by stating that he " had to object." It is equally apparent that it was a pro forma objection, the sincerity of which is belied by his final words, " he (Griffin) shouldn’t be the one that’s going to be out of money." Whether attorney Margenot was motivated by his relationship to Griffin which would represent a flagrant conflict of interest or whether he just lapsed back to the historical informality in the conduct of probate proceedings which prevailed before 2007 cannot be determined. One inference however is compelling and that is that his " representation" of the plaintiff fell far short of fulfillment of his sworn duty to make certain that the dispute was " forged in hot controversy with each view fairly and vigorously expressed." (Emphasis added.) Maloney v. Pac, 183 Conn. 313, 320 (1981).
Conflict of interest has been defined as " where one party in interest stands to gain significantly by adducing evidence, advancing arguments or engaging in conduct that is detrimental to the interest of the other party." Phillips v. Warden, 23 Conn.App. 63, 69 (1990).
For the foregoing reasons the court concludes that substantial rights of the plaintiff were gravely prejudiced by the failure of the court to follow applicable statutory requirements and the failure of the plaintiff’s attorney to provide the kind of representation which is implicit in the attorney/client relationship. Accordingly, the appeal is sustained. [*] The clerk of the court has captioned this case as William Weeks v. Eric Griffin . The caption of the case that appears here conforms to the convention our appellate courts use for appeals from Probate. David Eric Eder’s Appeal from Probate, 177 Conn.App. 163 (2017).