Smigelski v. Kosiorek
Smigelski v. Kosiorek
Opinion of the Court
The self-represented plaintiff, Jacek I. Smigelski,
Many of the relevant facts and the procedural history were set forth by this court in Disciplinary Counsel v. Smigelski, 124 Conn. App. 81, 4 A.3d 336 (2010), cert denied, 300 Conn. 906, 12 A.3d 1004, cert. denied, U.S. , 132 S. Ct. 101, 181 L. Ed. 2d 28 (2011). The' defendant, in both his individual and fiduciary capacities, retained the plaintiff to provide separate but related legal services. The plaintiff represented the defendant, in his fiduciary capacity, to clear title to the estate’s only asset, a house at 28 Terra Road in Plainville. Id., 84. The defendant and his family discovered that, within one year of his death at age eighty-three, Stanislaw Kosiorek had married Bronislawa Kosi-orek and transferred to her an undivided interest in the house. The discovery prompted the decedent’s heirs to
During the administration of the estate, the Plainville Probate Court issued two decrees that are relevant here. The fast decree, issued on December 12,2006, approved the sale of the house. The net proceeds of the sale totaled $155,300.82, which the defendant authorized to be given to the plaintiff as trustee. Id., 86. Pursuant to the plaintiffs interpretation of the terms of the fee agreement, the plaintiff paid himself $65,833.33, in addition to a retainer of $5000, for a total of $70,833.33 out of the estate funds that he was holding. Id., 86-87 and n.6. In its second decree, issued on May 21, 2007, the Probate Court ordered the plaintiff to return $54,833.33 to the estate. The Probate Court found that the plaintiffs fees were excessive and that an appropriate and reasonable fee for his services was $15,000 plus $1000 reimbursement for expert witness fees. The plaintiff refused to comply with the second decree. Id., 87-88.
This factual background spawned two separate actions that are relevant to the resolution of the plaintiffs claims on appeal. The defendant, in his fiduciary capacity, commenced and prevailed in an action against the plaintiff. See Kosiorek, v. Smigelski, 138 Conn. App. 695, 54 A.3d 564 (2012), also released today (“prior action”).
The defendant filed a motion to dismiss the plaintiffs amended complaint. The court, Young, J., in its memorandum of decision dated April 1, 2011, granted the defendant’s motion to dismiss with respect to the plaintiffs claims seeking a declaratory judgment in counts three and four. Judge Young stated: “[The plaintiff] makes no allegation in the third or fourth count that he has any interest, legal or equitable, in the decrees of the Probate Court. . . . [The plaintiff] doesn’t seek any personal remedy. Rather, he seeks the setting aside of decrees of a probate court, claiming that the conduct of [the defendant] caused damage to the heirs and the estate. . . . Because [the plaintiff] has failed to allege that he, himself, has an interest in declaratory judgment sought, he has failed to meet the requirements of Practice Book § 17-55. . . . [The plaintiff] has not claimed he has statutory authority to bring such actions, nor
Judge Young then considered the defendant’s motion to dismiss with respect to the breach of contract, breach of the implied covenant of good faith and fair dealing, and indemnification claims. The defendant argued that these claims should be barred under the doctrine of res judicata because the plaintiff had previously raised these claims in the prior action, which were decided by a motion for a directed verdict in that action. See Kosiorek v. Smigelski, supra, 138 Conn. App. 695. Judge Young denied the defendant’s motion to dismiss in this respect, stating: “[R]es judicata is not included among the permissible grounds on which to base a motion to dismiss. ... It may not be raised by a motion to dismiss. ... Of course, there is no reason why, in an appropriate case, once the defense of res judicata has been raised, the issue may not be resolved by way of summary judgment. . . . The validity of [these counts] cannot be addressed at this time.” (Citations omitted; internal quotation marks omitted.)
Thereafter, on September 19, 2011, the plaintiff filed a motion to disqualify the defendant’s counsel from representing the defendant in both his individual and fiduciary capacities in the present action. On October 4, 2011, the court, Pittman, J., denied the plaintiffs motion, stating: “The plaintiff has no standing to raise this issue.”
I
The plaintiffs first claim on appeal is that Judge Swienton improperly granted the defendant’s motion for summary judgment on the plaintiffs revised complaint on the basis of res judicata as to the breach of contract, breach of the implied covenant of good faith and fair dealing, and indemnity claims. The plaintiff claims that the court improperly applied the doctrine of res judicata to bar these claims in this action, which, unlike the prior action, are alleged against the defendant in his individual capacity. The plaintiff argues that because the defendant, in his individual capacity, is a separate party and not in privity with the defendant in his fiduciary capacity, the doctrine of res judicata—
“Under the doctrine of res judicata, a final judgment, when rendered on the merits, is an absolute bar to a subsequent action, between the parties or those in privity with them, upon the same claim.” Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 812, 695 A.2d 1010 (1997). In this instance, there is no dispute that the court, in the prior action, rendered a final judgment on the same claims that the plaintiff reasserts in this matter. The question, however, for our purposes, is whether there is privity between the defendant, in his fiduciary and individual capacities, such that these same claims should be barred by this court under the doctrine of res judicata.
“In determining whether privity exists, we employ an analysis that focuses on the functional relationships of the parties. Privity is not established by the mere fact that persons may be interested in the same question or in proving or disproving the same set of facts. Rather, it is, in essence, a shorthand statement for the principle that [res judicata] should be applied only when there exists such an identification in interest of one person with another as to represent the same legal rights so as to justify preclusion.” (Emphasis added.) Id., 814. “[T]he crowning consideration ... [in regard to] the basic requirement of privity . . . [is] that the interest of the party to be precluded must have been sufficiently represented in the prior action so that the application of [res judicata] is not inequitable.” (Internal quotation marks omitted.) Id., 818.
In granting the defendant’s motion for summary judgment, Judge Swienton stated: “The claims being raised
The court’s findings and determination in granting the motion for a directed verdict in favor of the defendant in his fiduciary capacity, in the prior action, are directly applicable to the plaintiffs claims against the defendant in his individual capacity, in this action, because the claims in both matters are identical and the fee agreement to be interpreted is the same. Because judicial interpretation of the fee agreement would be the same irrespective of those who are party to it, the defendant has, in his fiduciary and individual capacities, the same legal rights under the fee agreement that are sufficient to support a finding of privity between the defendant as an individual and as a fiduciary and justify preclusion of these claims under the doctrine of res judicata. See Mazziotti v. Allstate Ins. Co., supra, 240 Conn. 814.
Moreover, because the defendant, in his fiduciary capacity, possesses the same legal rights under the fee agreement in the fairly contested prior action, as he does in his individual capacity in this action, his legal rights were sufficiently represented in the first action, such that our application of res judicata does not yield an inequitable result in this instance. See id., 818. The claims that the plaintiff alleges in this action could only have been properly adjudicated in the prior action. This outcome is consistent with the fundamental purpose of the doctrine of res judicata, to “protect the finality
II
The plaintiffs second claim on appeal is that Judge Young improperly granted the defendant’s motion to dismiss with respect to counts three and four of his amended complaint, which sought a declaratory judgment to set aside the decrees of the Probate Court issued on December 12, 2006, and May 21, 2007. As aforementioned, the Probate Court decrees authorized the sale of the property and ordered the plaintiff to return the sum of $54,833.33 to the estate. The plaintiff claims that he was classically aggrieved by the decrees of the Probate Court and that, as a result, he has standing to bring these claims. We disagree.
“The standard of review for a court’s decision on a motion to dismiss is well settled. A motion to dismiss tests, inter aha, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss [is] de novo. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits ah facts which are well pleaded, invokes the existing record and must be decided upon that alone.” (Citation omitted; internal
In granting the defendant’s motion to dismiss, the court noted the following: the plaintiff made “no allegation . . . that he has any interest, legal or equitable, in the decrees of the Probate Court. . . . [He] doesn’t seek any personal remedy. . . . [He] has failed to allege that he, himself, has an interest in the declaratory judgment sought .... [He] has not claimed ... he is classically aggrieved. ... He has alleged no specific personal and legal interest in these decrees. . . . [He] fails to allege the decree of the Probate Court specially and injuriously affected him. . . . [He] has alleged no factual basis which would provide him standing as to the causes of action contained in the third and fourth counts.” (Citations omitted.)
Consistent with the court’s analysis, the plaintiff did not plead a factual basis which provides him standing with respect to counts three and four of his amended complaint. “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action .... Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved. . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the [challenged action], as distinguished from a general interest, such as the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the [challenged action]. . . . Aggrievement is established
As the court correctly stated, the plaintiff did not allege a “specific personal and legal interest” in the decrees of the Probate Court dated December 12, 2006, and May 21, 2007, or that he was “specially and injuriously affected” by the decrees. Accordingly, we conclude that the court did not err by dismissing counts three and four of the plaintiffs amended complaint.
Ill
The plaintiffs third claim on appeal is that Judge Pittman erred in denying his motion to disqualify the defendant’s counsel. The plaintiff argues that the defendant’s attorney cannot ethically represent both the defendant in his individual and fiduciary capacities on the basis that there is a conflict of interest between the defendant as a fiduciary and the defendant as an individual. The plaintiff advances the theory that the interest of the defendant, as a fiduciary to the estate, is in direct conflict with the defendant as an individual, who, to the detriment of the heirs of the estate, is bound by law to honor the fee agreement that he entered into with the plaintiff. The plaintiff argues that rule 8.3 (a) of the Rules of Professional Conduct, requires him to inform the appropriate professional authority of this conflict and affords him statutory standing to raise this claim.
The standard of review for determining whether the court properly denied a motion to disqualify counsel is
In her order dated October 4, 2011, Judge Pittman dismissed the plaintiffs motion to disqualify the defendant’s counsel because “[t]he plaintiff has no standing to raise this issue.” “Our case law is . . . clear that a person cannot gain standing by asserting the due process rights possessed by another individual. It is axiomatic that due process rights are personal, and cannot be asserted vicariously.” (Internal quotation marks omitted.) Taff v. Bettcher, 35 Conn. App. 421, 425, 646 A.2d 875 (1994). The defendant’s representation by counsel is, thus, an entitlement that belongs to him and him alone — not the plaintiff. See Strobel v. Strobel, 64 Conn. App. 614, 620, 781 A.2d 356 (concluding that defendant in dissolution of marriage proceeding did not have standing to disqualify counsel of minor child), cert. denied, 258 Conn. 937, 786 A.2d 426 (2001).
“Standing is established by showing that the party claiming it is authorized by statute to bring suit or is
Accordingly, we conclude that the court did not abuse its discretion in denying the plaintiffs motion to disqualify the defendant’s counsel.
The judgment is affirmed.
In this opinion the other judges concurred.
The plaintiff, a member of the Connecticut bar, was suspended from the practice of law at the time of oral argument. See Disciplinary Counsel v. Smigelski, 124 Conn. App. 81, 4 A.3d 336 (2010), cert denied, 300 Conn. 906, 12 A.3d 1004, cert. denied, U.S. , 132 S. Ct. 101, 181 L. Ed. 2d 28 (2011).
For convenience, we refer to Stanley Kosiorek in both capacities as the defendant.
Prior to the plaintiffs involvement, Bronislawa Kosiorek demanded $45,000 to quitclaim her interest in the house to the estate.
In that case, the defendant, in his fiduciary capacity, sought damages against the plaintiff on theories of, inter alia, breach of contract, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and civil conversion, General Statutes § 52-564. The plain
Rule 8.3 (a) of the Rules of Professional Conduct provides in relevant part: “A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. . . .”
Reference
- Full Case Name
- JACEK I. SMIGELSKI v. STANLEY KOSIOREK, (ESTATE OF STANISLAW KOSIOREK)
- Cited By
- 6 cases
- Status
- Published