In re Tunick

215 Conn.App. 551

284 A.3d 26

IN RE Probate Appeal of Stephen TUNICK

AC 43486

Appellate Court of Connecticut.

Argued November 8, 2021

Officially Released October 4, 2022

Laurel Fedor, for the appellant (plaintiff).

Cynthia Andrews DiPreta, Stamford, for the appellee (defendant).

Bright, C. J., and Moll and Bear, Js.

MOLL, J.

The plaintiff, Stephen Tunick, appeals from the judgment of the trial court dismissing his appeal from a probate decree approving the payment of attorney's fees to the defendant, Richard S. DiPreta. On appeal, the plaintiff claims that the court improperly (1) concluded that he was not aggrieved by the probate decree and (2) failed to consider certain trust documents in rendering its judgment. We do not reach the merits of these claims because we conclude that the probate decree at issue in this appeal was superseded by a subsequent probate decree, which is the subject of a separate probate appeal pending in the Superior Court, and, therefore, we dismiss this appeal as moot.

The following facts, as found by the trial court or as undisputed in the record, and procedural history are relevant to our disposition of this appeal. The plaintiff is a remainder beneficiary of a trust executed in 1981 by the plaintiff's father, who died in 1997. At the time of the father's death, there were three cotrustees of the trust: (1) the plaintiff; (2) the plaintiff's sister, Barbara Tunick (Barbara); and (3) the plaintiff's mother, Sylvia Tunick (Sylvia). On July 7, 2004, the Probate Court for the district of Greenwich, Caruso, J. , removed the plaintiff as cotrustee of the trust. Thereafter, Barbara and Sylvia continued to function as cotrustees of the trust until June 11, 2013, when the Probate Court, Hopper, J. , removed them from those roles and appointed Richard J. Margenot as the successor trustee.

In March, 2015, the defendant filed with the Probate Court a petition seeking approval and payment of attorney's fees for services that he had rendered to Barbara and Sylvia in their capacities as cotrustees of the trust. On March 7, 2017, the Probate Court issued a decree approving the payment of $109,133.74 to the defendant (2017 probate decree).

Soon thereafter, the plaintiff filed the underlying probate appeal in the Superior Court challenging the 2017 probate decree (2017 probate appeal). In his operative complaint, which was his second revised complaint filed on November 15, 2018, the plaintiff asserted that he was aggrieved by the 2017 probate decree on the basis of his belief "that the [attorney's] fees have been double billed and reimbursement has already been made with prior distributions as accounted for in the trust accountings. Such accountings are currently being investigated pursuant to [a civil] action in the Superior Court [commenced by the plaintiff in 2017; see Tunick v. Tunick , Superior Court, judicial district of Fairfield, Docket No. CV-16-5031896-S (2017 civil action)]; for breach of fiduciary duty against the former trustees of the [trust]. The Probate Court has entered orders to appoint an independent forensic accountant to determine indiscretions and/or illegal acts of the trustees. Therefore, any distribution, if warranted, is premature until the forensic accounting has been completed."¹

On May 10, 2019, following a trial de novo, the trial court, Sommer, J. , issued a memorandum of decision dismissing the 2017 probate appeal.² The court concluded that the plaintiff failed to demonstrate that he was aggrieved by the 2017 probate decree because, as he had asserted in his operative complaint, distribution of the $109,133.74 sum to the defendant was "premature in light of the pending forensic accounting"³ referenced in the plaintiff's operative complaint. The court further concluded that the claims raised by the plaintiff were outside of the scope of the 2017 probate decree from which he appealed. The court also declined to order payment of the $109,133.74 sum to the defendant on the ground that payment was premature in light of the pending forensic accounting. Additionally, addressing "an issue of the procedure for application of payment of attorney's fees," the court determined that, "because ... attorney's fees are a personal obligation of [a] fiduciary, in this case the trustees, the request for approval and payment [of the $109,133.74 sum] from the trust must be made by the trustees, not the payee attorney." On October 11, 2019, after the court had denied a motion for clarification and reargument that the plaintiff had filed,⁴ the plaintiff filed this appeal taken from the May 10, 2019 judgment.

On June 3, 2019, following the May 10, 2019 judgment but before the plaintiff had filed this appeal, Margenot, acting in his capacity as successor trustee, filed with the Probate Court a motion for advice, requesting permission to distribute $109,133.76 in trust funds to the defendant "in light of" the May 10, 2019 judgment dismissing the 2017 probate appeal. On July 1, 2019, the Probate Court, Hopper, J. , issued a decree allowing the distribution of $109,133.76 to the defendant (2019 probate decree).⁵

Subsequently, the plaintiff filed with the Superior Court an appeal from the 2019 probate decree. See Tunick v. DiPreta , Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-19-6042945-S (2019 probate appeal). In his most recent complaint filed in the 2019 probate appeal, which is his second revised complaint filed on June 28, 2021, the plaintiff asserted as follows with respect to the portion of the 2019 probate decree authorizing payment of the $109,133.76 sum to the defendant:

"(i) The [plaintiff] has claimed that the [attorney's] fees have been double billed and reimbursement has already been made with prior distributions as accounted for in the trust accountings.

"(ii) The [Probate] Court failed to take the double billing into consideration, thereby reducing the defendant's claimed attorney's fees owed.

"(iii) Such accountings are currently being investigated pursuant to [the 2017 civil action] ....

"(iv) The Probate Court has entered orders to appoint an independent forensic accountant to determine if there are indiscretions and/or illegal acts of the [t]rustees.

"(v) The forensic accountant is appointed and working on the review.

"(vi) Therefore, any distribution [of the attorney's fees] is erroneous .... The [plaintiff] has been aggrieved by the distribution of said attorney's fees ...." (Citation omitted.) To date, the plaintiff's claim in the 2019 probate appeal concerning the $109,133.76 sum remains unresolved.⁶

The plaintiff raises two claims on appeal. First, he asserts that the court improperly concluded that he was not aggrieved by the 2017 probate decree. Second, he asserts that the court improperly failed to consider certain trust documents before rendering the May 10, 2019 judgment. We need not examine the merits of these claims because we conclude that this appeal has been rendered moot following the entry of the 2019 probate decree.⁷

"Mootness implicates [the] court's subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... Because mootness implicates subject matter jurisdiction, it presents a question of law over which our review is plenary. ... Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition or affairs between the parties. ... A case is moot when due to intervening circumstances a controversy between the parties no longer exists." (Internal quotation marks omitted.) Barber v. Barber , 193 Conn. App. 190, 220–21, 219 A.3d 378 (2019).

The plaintiff requests as relief on appeal that we reverse the May 10, 2019 judgment and remand the case to the Superior Court with direction to sustain the 2017 probate appeal taken from the 2017 probate decree or, alternatively, to conduct a new trial. Granting such relief would be purely academic. The 2017 probate decree, wherein the Probate Court, in acting on a petition filed by the defendant, authorized payment of the $109,133.74 sum to the defendant, was superseded by the 2019 probate decree, wherein the Probate Court, in resolving a motion filed by Margenot, permitted Margenot to distribute the same funds to the defendant. See footnote 5 of this opinion. Accordingly, the 2017 probate decree is no longer in effect and no practical relief can be afforded to the plaintiff as to that decree, rendering this appeal moot.⁸ See, e.g., Dempsey v. Cappuccino , 200 Conn. App. 653, 659, 240 A.3d 1072 (2020) (subsequent visitation orders superseded orders challenged on appeal, rendering appeal moot); Thunelius v. Posacki , 193 Conn. App. 666, 686, 220 A.3d 194 (2019) (subsequent orders addressing appointment of guardian ad litem for child superseded order challenged on appeal, rendering portion of appeal moot). Moreover, as we noted earlier in this opinion, proceedings in the 2019 probate appeal, which encompasses the same claims raised by the plaintiff in the 2017 probate appeal, remain ongoing. See Murphy's Appeal from Probate , 22 Conn. App. 490, 496–97, 578 A.2d 661 (in affirming Superior Court's judgment...