Kemon v. Boudreau ( 2021 )

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KENNETH S. KEMON v. KENNETH BOUDREAU,
EXECUTOR (ESTATE OF ELIZABETH LEE
KEMON BOUDREAU), ET AL.
(AC 42918)
KENNETH KEMON v. KENNETH BOUDREAU,
EXECUTOR (ESTATE OF ELIZABETH
LEE KEMON BOUDREAU), ET AL.
(AC 42919)
Alvord, Moll and Alexander, Js.
Syllabus
The plaintiff, S, and his sister, E, were beneficiaries of a trust, executed by
their father. E was the original trustee until her death in 2016, when
the defendant K became the successor trustee. Upon E’s death, K repre-
sented to S that the trust’s assets had been fully disbursed to S and E,
but for $50,000 that had been set aside in a lawyers’ trust account as a
litigation reserve. Thereafter, the Probate Court approved an accounting
submitted by K in 2016. Subsequently, S appealed to the Superior Court
in 2017 from the probate order approving the 2016 accounting, claiming
that the 2016 accounting was incomplete. In addition, S commenced a
separate action in 2018 in the Superior Court, with similar claims to the
probate appeal, but he also included claims asserting breach of trust,
breach of the implied covenant of good faith and fair dealing, breach
of fiduciary duty, and tortious interference with an expectation of inheri-
tance in counts two, three, four and six against K for his actions involving
the payment of various fees and the $50,000 litigation reserve. The cases
were consolidated for trial, and the trial court rendered judgment for
the defendants in each case. Held:
1. The trial court erred in determining that S had abandoned counts two,
three, four, and six at trial in the Superior Court action on the basis of
statements by S’s counsel made during closing argument, as S adequately
advanced counts two, three, four, and six at trial for the court’s consider-
ation: during closing argument, S’s counsel identified punitive damages
in the form of attorney’s fees as one of S’s requests for relief predicated
on K’s alleged ‘‘wilful, wanton conduct,’’ counts two, three, four, and
six were supported by allegations that K had engaged in ‘‘wilful, wanton’’
conduct, and, collectively, counsel’s statements implicated the allega-
tions pleaded by S in support of those counts concerning K’s conduct;
moreover, the trial court’s articulation addressing counts two, three,
four, and six must be disregarded, as the articulation was inconsistent
with the memorandum of decision in which the trial court originally
disposed of those counts only on the ground that S had abandoned
them, and the articulation instead improperly addressed the merits of
all or some of S’s claims.
2. The trial court erred in rendering judgment in favor of K in the probate
appeal, as S’s receipt of an accounting in 2018 satisfied the relief he
was pursuing in his probate appeal during its pendency; because there
was no practical relief that the court could have granted him, the court
was deprived of subject matter jurisdiction over the probate appeal, and,
accordingly, the court’s lack of subject matter jurisdiction necessitated
a judgment of dismissal rather than a judgment for the defendants on
the merits and, therefore, the form of the judgment was improper.
Argued February 11—officially released June 29, 2021
Procedural History
Action, in the first case, for an order to compel an
accounting of a trust, and for other relief, brought to
the Superior Court in the judicial district of Hartford,
and an appeal, in the second case, from an order of the
Probate Court approving an accounting, brought to the
Superior Court in the judicial district of Hartford, where
the cases were consolidated and transferred to the Com-
plex Litigation Docket and tried to the court, Mou-
kawsher, J.; judgments for the named defendant et al.,
from which the plaintiff filed separate appeals to this
court. Reversed in part; new trial in Docket No. AC
42918; improper form of judgment; reversed; judg-
ment directed in Docket No. AC 42919.
E. James Loughlin, for the appellant in each case
(plaintiff).
Charles D. Ray, with whom, on the brief, were James
E. Regan and Angela M. Healey, for the appellees in
each case (named defendant et al.).
Opinion
MOLL, J. These consolidated appeals arise from a
dispute between the plaintiff, Kenneth S. Kemon, who
is a trust beneficiary, and the defendant Kenneth Bou-
dreau, who is, among other things, the executor of the
estate of the deceased trustee, Elizabeth Lee Kemon
Boudreau (trustee). With respect to Docket No. AC
42918, the plaintiff appeals from the judgment of the
trial court rendered in favor of the defendant1 on the
plaintiff’s amended complaint. On appeal, the plaintiff
claims that the court improperly concluded that (1) he
had abandoned at trial counts two, three, four, and six
of his amended complaint, and (2) to the extent that
the court addressed, in a postappeal articulation, the
merits of his breach of fiduciary duty claim set forth
in count four of his amended complaint, the court
improperly determined that there was no evidence in
the record demonstrating that the defendant breached
any duty owed to the plaintiff. We agree with the plain-
tiff that the court committed error in concluding that
he had abandoned the aforementioned counts of his
amended complaint. Accordingly, we reverse in part
the judgment rendered in AC 42918. With respect to
Docket No. AC 42919, the plaintiff appeals from the
judgment of the court rendered for the defendant in
the plaintiff’s appeal from a probate order approving
an accounting. On appeal, the plaintiff claims that the
court incorrectly rendered judgment in the defendant’s
favor notwithstanding that the probate appeal had been
rendered moot. We conclude that the probate appeal
became moot during its pendency, at which point the
court was divested of subject matter jurisdiction over
it. We further conclude that the form of the judgment
is improper because the court’s lack of subject matter
jurisdiction necessitated a judgment dismissing the pro-
bate appeal, rather than a judgment for the defendant
on the merits. Accordingly, we reverse the judgment
rendered in AC 42919.
The following facts and procedural history are rele-
vant to our resolution of these consolidated appeals.
On December 21, 2009, Solon B. Kemon, the plaintiff’s
father (grantor), executed an inter vivos trust (trust).
The trust named Elizabeth Lee Kemon Boudreau, the
plaintiff’s sister, as the trustee. The plaintiff and the
trustee were the primary beneficiaries of the trust.
Section 5.5 of the trust provided in relevant part that,
upon request, the trustee ‘‘shall render an account of
the administration of the trust to the then living adult
income beneficiaries and adult remainderman . . .
and the approval thereof by the living adult beneficiaries
and living adult remainderman shall be conclusively
binding upon all parties in interest under this [a]gree-
ment. . . .’’
On August 8, 2012, the grantor died. On May 1, 2016,
the trustee died. Thereafter, the defendant was
appointed as the executor of the trustee’s estate.
On August 11, 2016, in order to ‘‘resolve the issues’’
raised in a civil action filed in July, 2016, by the plaintiff
against the trustee,2 the defendant filed with the Probate
Court for the district of Simsbury a petition to approve
an appended accounting reflecting the trust’s transac-
tions from August 8, 2012, to April 30, 2016 (2016
accounting). The defendant represented that, at the
time of the trustee’s death on May 1, 2016, the trust’s
assets had been fully disbursed to the plaintiff and the
trustee with the exception of $50,000 that had been set
aside in a lawyers’ trust account by Attorney John F.
Kearns III, who was the defendant’s attorney at the time
and who had represented the trustee prior to her death,
‘‘for litigation and probate accounting fees due to the
acrimony between the parties’’ ($50,000 litigation
reserve).3 On January 18, 2017, the Probate Court,
Becker, J., approved the 2016 accounting, but ordered
the defendant to amend it to include a certain condo-
minium unit in Simsbury (Simsbury condominium unit)
and its fair market value. On January 20, 2017, the defen-
dant filed an informational schedule to the 2016
accounting, which listed the Simsbury condominium
unit as having no value.
Soon thereafter, the plaintiff appealed to the Superior
Court from the probate order approving the 2016
accounting (2017 probate appeal). In a revised com-
plaint filed on May 18, 2017, which became the plaintiff’s
operative pleading in the 2017 probate appeal, the plain-
tiff alleged, inter alia, that the 2016 accounting was
incomplete. The defendant4 subsequently filed an
answer denying the material allegations set forth in the
revised complaint.
On February 5, 2018, during the pendency of the 2017
probate appeal, the plaintiff commenced a separate civil
action in the Superior Court against the defendant (2018
action).5 The plaintiff’s original one count complaint
filed in the 2018 action was substantively similar to his
revised complaint filed in the 2017 probate appeal—
that is, the crux of the allegations in those pleadings
was that the 2016 accounting was incomplete.
On March 31, 2018, the 2017 probate appeal and the
2018 action were consolidated for trial, and they subse-
quently were transferred to the Complex Litigation
Docket. In August, 2018, while the 2017 probate appeal
and the 2018 action were pending, the defendant deliv-
ered to the plaintiff an updated accounting for the trust
(2018 accounting).
On October 26, 2018, the plaintiff filed an amended
six count complaint in the 2018 action, which became
his operative complaint therein. In count one, titled
‘‘Action to Compel Accounting,’’ the plaintiff alleged
only that the defendant had delivered to him the 2018
accounting. The remaining counts included an objec-
tion to the 2018 accounting, as well as claims asserting
breach of trust, breach of the implied covenant of good
faith and fair dealing, breach of fiduciary duty, and
tortious interference with an expectation of inheri-
tance. On January 31, 2019, the defendant filed a revised
answer denying the material allegations of the amended
complaint, except for his admission to the allegation
in count one that he had delivered the 2018 accounting
to the plaintiff. The defendant also asserted various
special defenses and claimed two setoffs. On February
19, 2019, the plaintiff filed a reply denying the special
defenses and the setoffs.
The 2017 probate appeal and the 2018 action were
tried to the trial court, Moukawsher, J., on March 26,
27, and 28, 2019.6 On March 29, 2019, the court issued
a memorandum of decision rendering judgment in the
defendant’s favor in each of the matters. On April 17,
2019, the plaintiff filed a combined motion seeking to
open the judgments and to reargue, which the court
denied on April 23, 2019. These consolidated appeals
followed.7 Additional facts will be set forth as necessary.
I
AC 42918
In AC 42918, the plaintiff appeals from the judgment
rendered by the trial court in the defendant’s favor in
the 2018 action. The plaintiff claims that (1) the court
improperly concluded that he had abandoned counts
two, three, four, and six of his amended complaint at
trial, and (2) to the extent that the court adjudicated
count four of his amended complaint, asserting breach
of fiduciary duty, in a postappeal articulation, the court
improperly determined that there was no evidence dem-
onstrating that the defendant breached a legally recog-
nized duty owed to the plaintiff. We agree with the
plaintiff’s first claim of error.8
The following additional facts are relevant to our
resolution of this appeal. The plaintiff’s amended com-
plaint contained the following six counts: (1) demand
to compel an accounting (count one); (2) breach of
trust (count two); (3) breach of the implied covenant
of good faith and fair dealing (count three); (4) breach
of fiduciary duty (count four); (5) objection to the 2018
accounting (count five);9 and (6) tortious interference
with an expectation of inheritance (count six). Count
one did not assert a claim actually seeking relief; rather,
the plaintiff alleged only that the defendant had deliv-
ered the 2018 accounting to him.10 In support of counts
two, three, four, and six, the plaintiff alleged, inter alia,
that he had suffered harm as a result of the defendant’s
failure to provide him with the 2018 accounting until
more than two years following the trustee’s death.
Counts three, four, and six also alleged certain ‘‘aggra-
vating circumstances,’’ including that the defendant
refused to provide the plaintiff with access to trust
records. To further support counts two, three, four, and
six, the plaintiff alleged, either directly or by incorpora-
tion, that the defendant’s conduct had been ‘‘wilful,
wanton and carried out with the reckless disregard for
the interests and rights of the plaintiff, causing damages
for which the defendant is liable.’’ In count five, the
plaintiff alleged that the 2018 accounting was ‘‘unsatis-
factory’’ in a number of ways.
At the end of the first day of evidence, the trial court
notified the parties that, as a matter of procedure, the
court preferred that they ‘‘get done with the evidence
and then we have what argument we need to have. In
other words, I don’t ask the parties to make one hour
presentations followed by half an hour followed by
twenty minutes or anything like that. What I prefer is
a lively exchange, which, in other words, I’ll give the
parties some idea of what I’m thinking about, and then
we can have an exchange in which I ask questions and
make notes and do that to the extent we have to. If
there are any questions of law that are in dispute, which
I’m not sure there will be, then that would be the time
to bring them to my attention. In other words, I don’t
need posttrial briefs. What I need is a thorough clos-
ing—closing argument exchange. And if there’s some-
thing that comes up during closing argument that you
need more time about or you want to submit something
about, we just discuss it at the time. I’m not going to
cut anybody off or prevent them from providing me with
things that are needed, but I’d much prefer a vigorous
closing argument to a period of thirty days going by
where everyone forgets about the case and then we try
to brief it and then, you know, several months later we
have argument or something like that. So my intention
is we go right into argument once—once evidence is
over. And I don’t mean that entirely literally. Sometimes
people say, ‘Well, can’t we come back tomorrow or
something?’ I’m not going to press you instantly to go
into closing argument. But don’t be thinking so much
about speech making for closing arguments as an
exchange. I’m going to give you some ideas of what I’m
thinking about, and then you can answer my questions
and tell me where I’ve got it wrong and where you think
I’ve got it right. And we can go back and forth as long
as we need to make it productive. So any questions on
that?’’ Neither party objected to that proposed proce-
dure.
On the final day of trial, after the close of evidence,
the following colloquy occurred:
‘‘The Court: Now we have closing arguments to dis-
cuss. So what I’d suggest is that if the parties want the
time we can do closing arguments at 2 p.m. If you are
urgently wishing to end this whole thing by 1 [p.m.] we
could start closing arguments at 12:30 [p.m.] and get
them over with. I’ll leave it up to the parties.
‘‘[The Plaintiff’s Counsel]: My understanding was
there was going to be a lively exchange, you were going
to give us some issues to think about and then—
‘‘The Court: Yeah, I’m going to ask questions and
we’ll be back and forth.
‘‘[The Plaintiff’s Counsel]: And I’m looking forward
to that to bring more issues that I can understand and
look into and then I got the impression that we were
going to come back a day or two later after that?
‘‘The Court: Well, what I indicated about that—no,
no, no, what I indicated about that is if you wanted
to come back a day or two from now to do closing
arguments, which would be the lively exchange I
described we can do that. I don’t see any reason why
we shouldn’t do them while you’re here. And I think
probably to give you enough time you might want to
wait until 2 [p.m.], but if you don’t want to we can take
a break . . . and pick it up at 12:30 [p.m.], but I
wouldn’t want to go less than a half an hour. But I’m
going to ask questions, such as, I want to make sure I
understand the universe of things that you’re claiming
in the case. What is the relief that you’re after and then
the evidence that supports these things and then that
tends to lead to the back and forth. [The defendant’s
counsel] will comment on those things and we’ll go
back and forth about it. So the question is do you want
to do [it] at 12:30 [p.m.] or 2 [p.m.]?
‘‘[The Plaintiff’s Counsel]: I’m sort of feeling like
doing it right now.
‘‘The Court: Oh.
‘‘[The Plaintiff’s Counsel]: But what happens if in
the middle of it there’s a question of law that I hadn’t
thought of?
‘‘The Court: Well, then you’d indicate that to me and
I can give you time or we’ll do whatever it is.
‘‘[The Plaintiff’s Counsel]: Okay.
‘‘The Court: Sometimes what happens is something
comes up and I can get a quick answer to it, sometimes
I can’t. But I’m not going to just say times up you don’t
get to look up this case or something like that. I won’t
do that to you. But you want to start right now?
‘‘[The Plaintiff’s Counsel]: I’m ready right now.
‘‘[The Defendant’s Counsel]: Your Honor, that’s cer-
tainly fine with the defendant to start now.’’
After a brief discussion regarding the status of an
exhibit, counsel for both parties reaffirmed that they
were prepared to proceed with argument. The court
then asked the plaintiff’s counsel to specify ‘‘each thing
that [the plaintiff is] asking for in terms of relief.’’ The
plaintiff’s counsel identified four items. First, he
requested that the $50,000 litigation reserve be returned
to the trust. He argued that, under the common law,
the defendant was not entitled to those funds unless
the defendant prevailed in the litigation.11
Second, the plaintiff’s counsel requested $9225 as
reimbursement for legal fees that the plaintiff had
incurred with respect to his portion of certain real prop-
erty in Vermont that had been left to the plaintiff and
the trustee by their deceased mother’s trust (Vermont
property). He argued that the trustee had used funds
from the trust (that is, the inter vivos trust executed
by the grantor) to pay fees in developing her portion
of the Vermont property, such that he was entitled to
reimbursement for fees that he had expended in relation
to his portion of the Vermont property.
Third, the plaintiff’s counsel requested $11,907, which
represented condominium fees for the Simsbury condo-
minium unit that the trustee had paid using trust funds.
He argued that those fees could have been avoided.
Last, the plaintiff’s counsel requested common-law
punitive damages in the form of attorney’s fees for
‘‘wilful, wanton conduct.’’ In support thereof, the plain-
tiff’s counsel referenced the portion of count six alleg-
ing that the defendant had engaged in tortious conduct
interfering with the plaintiff’s expectation of an inheri-
tance, which, the plaintiff further alleged, was ‘‘wilful,
wanton and carried out with the reckless disregard for
the interests and rights of the plaintiff . . . .’’ The court
asked the plaintiff’s counsel to confirm that he was
requesting that the court ‘‘make a finding [awarding
attorney’s fees as punitive damages] and then hold a
hearing later on [regarding] the amount if [the court
made] such a finding,’’ to which counsel replied in the
affirmative.
At the close of argument, the plaintiff’s counsel stated
the following: ‘‘We have spoken about please give us
an inventory and all the receipts and all the distributions
[with respect to the trust] for the period from inception
until . . . death. That’s what we have said. All along
the way counsel has addressed other issues that we
may have brought up during the litigation that were not
presented here at trial. But when we came here to trial
all we talked about was we needed information about
[the trust from] inception to death and we didn’t get
those until about a month ago [in February, 2019],12
notwithstanding all the demands that we had made.
And [the defendant] acknowledge[s] that [the] $50,000
[litigation reserve] was held back. [The trustee] told
[the defendant] ‘don’t tell [the plaintiff] that I’ve died.’13
It’s almost like a movie. Those were [the trustee’s] last
words. And so [the plaintiff] didn’t know that the money
was there. He didn’t know that he was supposed to be
the trustee until the money was already gone.14 And
then after that they refused the records. They refused
the accountings. We asked for checks. We asked for
the invoices. There were 4000 pages on [an] . . . elec-
tronic disc and that’s when all the answers were pro-
vided and that’s when we pared down our argument to
the few that we’ve made right now.
‘‘Had we received that [electronic] disc, had we
received those materials back in April, [2016], when I
initially demanded them, nicely demanded them, none
of my fees would have been incurred. We would have
had some of that [$50,000 litigation reserve] sent back.
None of this would have happened.’’ (Footnotes added.)
In its memorandum of decision, the court stated that
the 2017 probate appeal and the 2018 action ‘‘reflect [the
plaintiff’s] complaints against [the trustee’s] handling
of the trust. Lest there be confusion, the plaintiff . . .
asks for four things and four things only: [1] $50,000
[that] the trust put aside anticipating litigation and has
fully spent; [2] $9225 in legal fees [the plaintiff] spent
developing his half of the [Vermont property] . . . left
to [the plaintiff and the trustee] equally; [3] $11,907 in
condo fees [the plaintiff] says should have been
avoided; [and (4) the plaintiff’s] attorney’s fees in this
litigation.’’ As to the plaintiff’s claim concerning the
$50,000 litigation reserve, the court concluded that the
claim failed because the defendant was the prevailing
party. With respect to the plaintiff’s claim seeking $9225
as reimbursement for his legal fees in relation to the
Vermont property, the court concluded, inter alia, that
the plaintiff’s request for reimbursement was untimely.
As to the plaintiff’s claim seeking $11,907 in fees relating
to the Simsbury condominium unit, the court concluded
that (1) the terms of the trust limited the trustee’s liabil-
ity to wilful misconduct and (2) the trustee made an
unassailable ‘‘judgment call’’ to attempt diligently to
sell the Simsbury condominium unit, but ultimately was
unsuccessful.15 With respect to the plaintiff’s final claim
seeking punitive damages, the court concluded that
‘‘[the plaintiff] made clear on the record that his only
claim for attorney’s fees was based upon a claim that
they should be awarded as punitive damages. [The
trustee] did nothing wrong. There is no basis for [the
plaintiff] to recover his [attorney’s] fees.’’ The court
then rendered judgment for the defendant without refer-
ence to any specific counts of the plaintiff’s amended
complaint.
In his ensuing combined motion to open the judg-
ments and to reargue, the plaintiff contended in relevant
part that the court’s memorandum of decision disposed
of count five, asserting an objection to the 2018 account-
ing, but failed to address counts two, three, four, or six,
which, according to the plaintiff, contained allegations
that the defendant ‘‘wilfully, wantonly and recklessly
withheld trust information from the plaintiff that, had it
been presented when originally requested, would have
avoided litigation altogether.’’ The plaintiff further
asserted that the court focused its analysis on the trust-
ee’s conduct while ignoring the plaintiff’s allegations
against the defendant, notwithstanding that ‘‘this action
is against the defendant . . . and the causes of action
against him . . . should be adjudicated . . . .’’ In
denying the plaintiff’s motion, the court stated in rele-
vant part that ‘‘the court was not required to make fact
findings with respect to matters immaterial to the relief
sought. The other matters raised in the motion were
immaterial in that regard.’’
Following the filing of these consolidated appeals,
pursuant to Practice Book § 66-5, the plaintiff filed a
motion seeking an articulation of the court’s disposition
of counts two, three, four, and six. The plaintiff con-
tended that the memorandum of decision did not
address any of the alleged actions committed by the
defendant following the trustee’s death, which formed
the crux of counts two, three, four, and six.
On August 23, 2019, the court issued an articulation
stating that the memorandum of decision ‘‘does not
address the conduct of the defendant . . . because at
trial the plaintiff . . . chose to limit the relief he
claimed to matters that turned only on alleged wrongdo-
ing by [the trustee]. The only relief item that affected
[the defendant] at all was a claim that [the defendant]
shouldn’t have used [the $50,000 litigation reserve] for
fees in this litigation. About this, [the plaintiff] conceded
that he would have to win his claims of wrongdoing by
[the trustee] to win his claim that this money shouldn’t
have been used. And [the plaintiff] didn’t win. So by
[the plaintiff’s] own admission, he couldn’t win his claim
about the fees either.’’
The court further stated that, ‘‘[e]ven if findings
should be made regarding conduct not at issue in this
case, having considered all of the evidence, it is plain
that [the defendant] committed no breach of any duty
as [the plaintiff] may have alleged it. The evidence as
it relates to [the defendant] revealed in substance only
quibbles over the timing and the completeness of docu-
ments provided during the course of the dispute. No
evidence supported claims concerning [the defendant]
breaching a legally recognized duty. Instead, the evi-
dence at trial focused on the matters related to the
[trustee’s] decisions and actions before [the defendant]
assumed her duties upon her death. [The plaintiff’s]
only other complaint about [the defendant] appeared
to be his failure promptly to inform [the plaintiff] that
[the trustee] had died. But [the plaintiff] never con-
nected this claim to a duty owed that was breached,
and which, by virtue of being breached, merited any of
the relief [the plaintiff] chose to seek at trial.’’
In summary, the court stated that ‘‘[the defendant’s]
actions were not in issue at the trial because they were
unrelated to the claims [the plaintiff] chose to press.
But even if they were, [the defendant] breached no duty,
and his actions were disconnected to the actual wrongs
and relief [the plaintiff] claimed.’’
The dispositive claim raised by the plaintiff is that
the court improperly concluded that, on the basis of
his counsel’s statements during closing argument, he
had abandoned counts two, three, four, and six at trial.
The plaintiff maintains that the record reflects that he
preserved those counts for adjudication by the court.16
The defendant argues that the court correctly con-
cluded that the plaintiff had abandoned counts two,
three, four, and six. We agree with the plaintiff.
The following standard of review and legal principles
are applicable here. ‘‘Because . . . the idea of aban-
donment involves both a factual finding by the trial
court and a legal determination that an issue is no longer
before the court, we will treat this claim as one of both
law and fact. Accordingly, we will accord it plenary
review.’’ Solek v. Commissioner of Correction, 107
Conn. App. 473, 479, 946 A.2d 239, cert. denied, 289
Conn. 902, 957 A.2d 873 (2008).
Pursuant to Practice Book § 5-2, ‘‘[a]ny party
intending to raise any question of law which may be
the subject of an appeal must either state the question
distinctly to the judicial authority in a written trial brief
under Section 5-1 or state the question distinctly to
the judicial authority on the record before such party’s
closing argument and within sufficient time to give the
opposing counsel an opportunity to discuss the ques-
tion. If the party fails to do this, the judicial authority
will be under no obligation to decide the question.’’
Additionally, Practice Book § 64-1 (a) provides in rele-
vant part that ‘‘[t]he trial court shall state its decision
either orally or in writing . . . in rendering judgments
in trials to the court in civil and criminal matters . . . .
The court’s decision shall encompass its conclusion as
to each claim of law raised by the parties and the factual
basis therefor. . . .’’ ‘‘The responsibility of a court is
to respond to those claims fairly advanced.’’ (Internal
quotation marks omitted.) Auerbach v. Auerbach, 113
Conn. App. 318, 334, 966 A.2d 292, cert. denied, 292
Conn. 902, 971 A.2d 40 (2009). ‘‘The mere recital of
. . . claims in a [complaint], without supporting oral
or written argument, does not adequately place those
claims before the court for its consideration. This is
particularly true when counsel has been warned by the
court . . . that it would consider abandoned any
claims not advanced by counsel in closing argument.’’
Solek v. Commissioner of Correction, supra, 107 Conn.
App. 480–81.
After a careful review of the record, we conclude
that the plaintiff adequately advanced counts two, three,
four, and six at trial for the court’s consideration. During
closing argument, the plaintiff’s counsel identified puni-
tive damages in the form of attorney’s fees as one of
the plaintiff’s requests for relief predicated on the defen-
dant’s alleged ‘‘wilful, wanton conduct . . . .’’ Counts
two, three, four, and six were supported by allegations
that the defendant had engaged in ‘‘wilful, wanton’’ con-
duct. Additionally, at the end of his closing argument,
the plaintiff’s counsel argued in relevant part that (1)
at trial ‘‘all we talked about was we needed information
about [the trust from] inception to death,’’ (2) despite
the plaintiff’s demands, the defendant refused to supply
trust records and accountings, (3) the defendant deliv-
ered to the plaintiff the electronic disc containing trust
documents in February, 2019; see footnote 12 of this
opinion; and (4) had the plaintiff been provided with
the information contained on the electronic disc sooner,
‘‘none of [counsel’s] fees would have been incurred,
[w]e would have had some of the [$50,000 litigation
reserve] sent back, [and] [n]one of this would have
happened.’’ Collectively, counsel’s statements implicate
the allegations pleaded by the plaintiff in support of
counts two, three, four, and six concerning conduct by
the defendant.17 Accordingly, we conclude that the court
incorrectly concluded that the plaintiff had abandoned
counts two, three, four, and six at trial.
At this juncture, we must address briefly the court’s
August 23, 2019 articulation. In the articulation, the
court (1) reiterated that conduct by the defendant,
which comprised the core of the allegations in counts
two, three, four, and six, was not at issue at trial because
it was ‘‘unrelated to the claims [the plaintiff] chose to
press,’’ and (2) ‘‘even if’’ the defendant’s actions were
at issue, the plaintiff failed to demonstrate that the
defendant had breached any duty owed to the plaintiff.
The court’s memorandum of decision, its denial of the
plaintiff’s combined motion to open the judgments and
to reargue, and its articulation, make apparent that the
court originally disposed of counts two, three, four, and
six only on the ground that the plaintiff had abandoned
them. To the extent that the court, in its articulation,
addressed the merits of any or all of counts two, three,
four, and six, the articulation is inconsistent with the
memorandum of decision and must be disregarded
because ‘‘[a]n articulation is not an opportunity for a
trial court to substitute a new decision nor to change
the reasoning or basis of a prior decision.’’ Koper v.
Koper, 17 Conn. App. 480, 484, 553 A.2d 1162 (1989);
see also Sosin v. Sosin, 300 Conn. 205, 240, 14 A.3d 307(2011) (disregarding trial court’s articulation and order
that were inconsistent with court’s original order, as
subsequently clarified, regarding interest award); Casi-
raghi v. Casiraghi, 200 Conn. App. 771, 785 n.13, 241
A.3d 717 (2020) (trial court could not use articulation
to set forth findings concerning plaintiff’s ability to pay
and status of his payment obligations regarding former
marital home when court admitted that it did not make
such findings in court’s original contempt decision);
Pecan v. Madigan, 97 Conn. App. 617, 623, 905 A.2d
710 (2006) (trial court could not use articulation to state
that it had stricken counts as legally insufficient when
court’s original decision reflected that court had
stricken counts on basis of prior pending action doc-
trine), cert. denied, 281 Conn. 919, 918 A.2d 271 (2007);
Kelly v. Kelly, 54 Conn. App. 50, 54 n.3, 732 A.2d 808(1999) (this court was ‘‘constrained to follow’’ trial
court’s original decision granting motions rather than
court’s inconsistent articulation denying motions).
In sum, we conclude that the court committed error
in concluding that the plaintiff had abandoned counts
two, three, four, and six at trial. Accordingly, we reverse
the portion of the court’s judgment rendered on those
counts and remand the case for a new trial on those
counts.
II
AC 42919
In AC 42919, the plaintiff appeals from the judgment
rendered in the defendant’s favor in the 2017 probate
appeal. The plaintiff claims that the court improperly
rendered judgment for the defendant notwithstanding
that the 2017 probate appeal became moot following
(1) the plaintiff’s receipt of the 2018 accounting and
(2) the court’s rejection of count five of his amended
complaint filed in the 2018 action, in which he asserted
an objection to the 2018 accounting. For the reasons
that follow, we conclude that the 2017 probate appeal
was rendered moot during its pendency in the trial
court, thereby depriving the court of subject matter
jurisdiction over it and necessitating its dismissal.
‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
[a] court’s subject matter jurisdiction . . . . Because
courts are established to resolve actual controversies,
before a claimed controversy is entitled to a resolution
on the merits it must be justiciable. . . . Justiciability
requires (1) that there be an actual controversy between
or among the parties to the dispute . . . (2) that the
interests of the parties be adverse . . . (3) that the
matter in controversy be capable of being adjudicated
by judicial power . . . and (4) that the determination
of the controversy will result in practical relief to the
complainant. . . . A case is considered moot if [the
trial] court cannot grant . . . any practical relief
through its disposition of the merits . . . . [I]t is not
the province of [the] courts to decide moot questions,
disconnected from the granting of actual relief or from
the determination of which no practical relief can fol-
low. . . . When . . . events have occurred that pre-
clude [the] court from granting any practical relief
through its disposition of the merits, a case has become
moot. . . . [B]ecause an issue regarding justiciability
raises a question of law, our appellate review is ple-
nary.’’ (Citations omitted; internal quotation marks
omitted.) Abel v. Johnson, 194 Conn. App. 120, 149–50,
220 A.3d 843 (2019), cert. granted, 334 Conn. 917, 222
A.3d 104 (2020).
The following additional facts are relevant to our
disposition of this appeal. In his revised complaint, the
plaintiff alleged in relevant part that the 2016 accounting
was incomplete, and, therefore, he was aggrieved by
the Probate Court’s order approving the 2016 account-
ing.18 In August, 2018, while the 2017 probate appeal
and the 2018 action were pending, the defendant deliv-
ered the 2018 accounting to the plaintiff. Subsequently,
the question of whether the defendant’s delivery of the
2018 accounting to the plaintiff rendered the 2017 pro-
bate appeal moot was raised before the trial court. In
his answer to the plaintiff’s revised complaint filed on
February 25, 2019, in an introductory paragraph, the
defendant represented that the ‘‘[p]laintiff’s counsel has
acknowledged that [the 2017 probate appeal] was moot
in a prior status conference . . . and suggested that
the plaintiff would be withdrawing the appeal. As such,
the defendant asserts that the revised complaint . . .
can and should be withdrawn.’’
Additionally, during closing argument, the following
colloquy occurred:
‘‘[The Plaintiff’s Counsel]: So, when the 2018 account-
[ing] was submitted you may recall that [the defen-
dant’s] counsel has throughout said the 2017 [probate]
appeal is mooted by the 2018 account[ing] and I agree.
But during the pendency of these proceedings I didn’t
know because you can’t just say, yes, it’s moot and then
dismiss the case or withdraw the case. There has to be
some sort of pleading and then some sort of resolution
from the court.
‘‘The Court: Okay. But are you telling me now that
you consider the [2017] probate appeal, there’s [the
2017] probate appeal and [the 2018 action] here; are
you saying now that that should be dismissed as moot?
‘‘[The Plaintiff’s Counsel]: I would rather have it
remanded back to the [Probate Court] saying because
the 2018 account[ing] was submitted that 2018 account[-
ing] is controlling and as a result the [Probate] Court
should enter as an order provisions in the 2018 account[-
ing] as that will be handed down after this hearing.
‘‘The Court: You’re telling me though that you’re not
asking me to overturn the 2016 accounting; is that fair,
because you consider it moot?
‘‘[The Plaintiff’s Counsel]: I just get nervous.
‘‘The Court: Well, I’m not sure what you want me to
do, so at the very least you should tell me, make it clear
what you’re asking the court to do.
‘‘[The Plaintiff’s Counsel]: I think the effect of these
proceedings should serve to sustain the [2017 probate]
appeal so that absolutely [the 2017 probate] appeal, the
decree of the [Probate] Court is to no effect.
‘‘The Court: And is that because you’re asking me to
find the 2018 accounting is improper?
‘‘[The Plaintiff’s Counsel]: It’s supplanted.
‘‘The Court: Because [the 2018 accounting] supplants
the 2016 [accounting]?
‘‘[The Plaintiff’s Counsel]: Yes.
‘‘The Court: And you’re saying that by virtue of the—
if I find that the 2018 accounting is wrong, then that
would automatically mean I should overturn the pro-
bate decision on the 2016 accounting; is that what you’re
saying and then send the whole thing back? . . .
‘‘[The Plaintiff’s Counsel]: I don’t think the 2018
accounting is wrong. I think that there are a few things
that need to be tweaked. There need to be things that
are surcharged, but it complies with statutory require-
ments. . . . On the other hand, my appeal from the
[Probate Court order] was [that] it was statutorily insuf-
ficient . . . .’’
Following the statements made by the plaintiff’s
counsel, the defendant’s counsel inquired whether the
2017 probate appeal had been withdrawn. The court
responded that the 2017 probate appeal had not been
withdrawn and that, ‘‘[d]epending on what [the court
rules], it will have implications and [the court is] going
to have to sort those out.’’
In the memorandum of decision, the court first
rejected the plaintiff’s claim raised in the 2018 action
challenging the 2018 accounting. The court then stated
that it was rendering judgment ‘‘for the defendant in
both cases.’’ The mootness issue was not addressed by
the court in the memorandum of decision or in the
court’s postjudgment decisions.
The plaintiff claims that the court improperly ren-
dered judgment in the defendant’s favor because the
2017 probate appeal became moot following (1) the
plaintiff’s receipt of the 2018 accounting in August, 2018,
and (2) the court’s disposition of his objection to the
2018 accounting, as asserted in count five of his
amended complaint filed in the 2018 action, on March
29, 2019. We agree with the plaintiff that the 2017 pro-
bate appeal was moot at the time of judgment; however,
we disagree with the plaintiff insofar as he contends
that the 2017 probate appeal was not moot until the
resolution of the 2018 action on March 29, 2019. We
conclude, instead, that the 2017 probate appeal became
moot during its pendency in August, 2018,19 when the
plaintiff received the 2018 accounting.20
During closing argument before the trial court, the
plaintiff’s counsel expressly represented that the plain-
tiff’s receipt of the 2018 accounting mooted the 2017
probate appeal. The plaintiff repeated that representa-
tion in his combined motion to open the judgments and
to reargue by asserting that, ‘‘[u]ltimately, [he] prevailed
on appeal, when the full-term accounting was presented
by the defendant . . . in August, 2018. . . . [The
court’s judgment in the 2017 probate appeal] overlooks
that midlitigation the plaintiff received what he’d
sought on appeal.’’ (Emphasis added.) Moreover, in his
principal appellate brief, the plaintiff acknowledges that
the 2018 accounting satisfied the relief that he sought
in the 2017 probate appeal, and in his reply brief, he
represents that ‘‘the 2017 probate appeal was [filed] for
the sole purpose of compelling a full-term accounting
. . . .’’ (Emphasis added.)
In addition, during closing argument, the plaintiff
requested that the trial court sustain the 2017 probate
appeal and remand the matter to the Probate Court for
additional proceedings. In his principal appellate brief,
however, the plaintiff requests as relief that we reverse
the judgment rendered in the 2017 probate appeal and
remand the case to the trial court ‘‘with instruction that
the [2017 probate] appeal is no longer justiciable and
is to be withdrawn or dismissed . . . .’’ We construe
the plaintiff’s statements as abandoning any claim that
the trial court could afford him practical relief in the
form of sustaining the 2017 probate appeal in his favor
and taking any additional action in conjunction there-
with.
In light of the plaintiff’s representations before the
trial court, as maintained on appeal, we conclude that
the plaintiff’s receipt of the 2018 accounting in August,
2018, satisfied the relief that he was pursuing in the
2017 probate appeal. Following the plaintiff’s receipt
of the 2018 accounting, there was no practical relief
that the court could have granted him, thereby depriving
the court of subject matter jurisdiction over the 2017
probate appeal. We further conclude that the court’s
lack of subject matter jurisdiction necessitated a judg-
ment of dismissal rather than a judgment on the merits
for the defendant, and, therefore, the form of the judg-
ment is improper.21 See Gershon v. Back, 201 Conn.
App. 225, 244, 242 A.3d 481 (2020) (‘‘[w]henever a court
finds that it has no jurisdiction, it must dismiss the
case’’ (internal quotation marks omitted)).
The judgment in Docket No. AC 42918 is reversed
only as to counts two, three, four, and six of the plain-
tiff’s amended complaint in the 2018 action and the
case is remanded for a new trial on those counts; the
judgment is affirmed in all other respects; the form of
the judgment in Docket No. AC 42919 is improper, the
judgment is reversed and the case is remanded with
direction to render judgment dismissing the 2017 pro-
bate appeal for lack of subject matter jurisdiction.
In this opinion the other judges concurred.
1
In the two matters underlying these consolidated appeals, Kenneth Bou-
dreau was named as a defendant (1) in his capacity as the executor of the
trustee’s estate, (2) in his capacity as the legal representative of the trustee,
and/or (3) in his personal capacity. See footnotes 4 and 5 of this opinion.
Several other individuals were named as defendants in one or both of the
underlying matters, but none of those other defendants is participating in
these consolidated appeals as the plaintiff did not pursue any claims against
them. For the sake of simplicity, we will refer in this opinion to Kenneth
Boudreau in his collective capacities as the defendant.
2
In July, 2016, the plaintiff filed an action in the Superior Court demanding
that the trustee provide him with an accounting of the trust. See Kemon v.
Boudreau, Superior Court, judicial district of Hartford, Docket No. CV-16-
6069772-S. On October 7, 2016, the plaintiff withdrew that action after having
learned that the trustee had died prior to service of process.
3
During trial, Attorney Kearns testified that, upon his recommendation,
the trustee decided to set aside the $50,000 litigation reserve.
4
In the 2017 probate appeal, the defendant was named as a party only in
his capacity as the executor of the trustee’s estate.
5
In the plaintiff’s original complaint filed in the 2018 action, the defendant
was named as a party only in his capacity as the executor of the trustee’s
estate. The plaintiff subsequently moved to cite in the defendant, both in
his personal capacity and in his capacity as legal representative of the
trustee, which the court, Budzik, J., granted on October 3, 2018.
6
With respect to the 2017 probate appeal, we observe that ‘‘[a]n appeal
from a Probate Court to the Superior Court is not an ordinary civil action.
. . . When entertaining an appeal from an order or decree of a Probate
Court, the Superior Court takes the place of and sits as the court of probate.
. . . In ruling on a probate appeal, the Superior Court exercises the powers,
not of a constitutional court of general or common law jurisdiction, but of
a Probate Court. . . . When, as here, no record was made of the Probate
Court proceedings, the absence of a record requires a trial de novo.’’ (Citation
omitted; internal quotation marks omitted.) Silverstein v. Laschever, 113
Conn. App. 404, 409, 970 A.2d 123 (2009).
7
On May 9, 2019, the plaintiff filed separate appeals from the respective
judgments rendered in the 2017 probate appeal and in the 2018 action. These
appeals were consolidated on June 25, 2019.
8
As we explain later in part I of this opinion, the court could not use its
articulation to address the merits of the plaintiff’s claims that the court, in
its memorandum of decision, had deemed to have been abandoned. Thus,
our conclusion that the court improperly concluded that the plaintiff had
abandoned counts two, three, four, and six of his amended complaint at
trial is dispositive of the plaintiff’s appeal in AC 42918.
9
Because count five is not at issue on appeal, we limit our discussion of
the allegations in support of that count. See footnote 16 of this opinion.
10
In his principal appellate brief, the plaintiff states that his receipt of
the 2018 accounting ‘‘dispensed with count [one].’’
11
Initially, as an alternative argument, the plaintiff’s counsel argued that
the terms of the trust barred the expenditure of the $50,000 litigation reserve.
Subsequently, the plaintiff’s counsel appeared to abandon that alternative
argument. The court then asked the plaintiff’s counsel to confirm that he
had ‘‘one argument here. . . . [T]he claim here is not that the [trust] instru-
ment wouldn’t allow it. The claim is that the trustee must prevail in order to
get fees; is that correct?’’ The plaintiff’s counsel responded in the affirmative.
12
During trial, the plaintiff testified that, in February, 2019, in response
to discovery requests, the defendant delivered to the plaintiff an electronic
disc with thousands of ‘‘trust documents.’’ The electronic disc was entered
into the record as a full exhibit.
13
During trial, the defendant testified that, shortly before the trustee’s
death on May 1, 2016, the trustee instructed him not to inform the plaintiff
of her death. The plaintiff testified that he did not learn of the trustee’s
death until August, 2016, in connection with the civil action that he had
filed against the trustee in July, 2016. See footnote 2 of this opinion.
14
Section 4.1 of the trust provided in relevant part that, if the trustee
failed ‘‘to qualify, [was] unable to act or cease[d] to serve for any reason,’’
then the plaintiff would be appointed as the successor trustee. During trial,
the plaintiff testified that he had filed an application with the Probate Court
to be appointed as the successor trustee, but he elected not to pursue the
application.
15
As the court found, ‘‘[a]fter eighteen months of trying [the trustee] gave
up and turned the [Simsbury condominium unit] in for nothing to the condo
association.’’
16
The plaintiff is not appealing from the portion of the judgment disposing
of count five in the defendant’s favor.
17
Additionally, we note that the evidence produced at trial was not limited
to actions taken by the trustee prior to her death, but included the defendant’s
conduct following the trustee’s death.
18
As relief, the plaintiff sought (1) ‘‘such relief as is proper,’’ (2) ‘‘[a]n
accounting of [t]rust activity, from its inception to date,’’ (3) ‘‘[j]udgment
for amounts found due under such accounting,’’ (4) damages, (5) prejudg-
ment and postjudgment interest, and (6) any other legal or equitable relief
available. On August 2, 2017, the defendant filed a motion to strike the
claims for relief numbered two through five, which the court, Shapiro, J.,
granted on April 3, 2018. The granting of the defendant’s motion to strike
is not at issue on appeal.
19
The 2018 accounting is dated August 6, 2018. An e-mail admitted into
evidence at trial in conjunction with the 2018 accounting reflects that the
2018 accounting was delivered to the plaintiff’s counsel via e-mail on August
9, 2018. During trial, the plaintiff testified that he received the 2018 account-
ing in August, 2018, without specifying a date. The precise date in August,
2018, on which the plaintiff received the 2018 accounting is not relevant to
our analysis.
20
The plaintiff also claims that, in rendering judgment for the defendant
in the 2017 probate appeal, the court applied the wrong reasoning because
it relied exclusively on its rationale disposing of the 2018 action in adjudicat-
ing the 2017 probate appeal. We need not address this additional claim in
light of our conclusion that the 2017 probate appeal was rendered moot
during its pendency.
21
In his appellate brief, the defendant argues that the court properly
rendered judgment in his favor in the 2017 probate appeal; however, the
defendant does not address the effect of the plaintiff’s receipt of the 2018
accounting during the pendency of the 2017 probate appeal on the justiciabil-
ity of that appeal.