Tyler v. Tyler ( 2014 )

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JAY M. TYLER v. THOMAS J. TYLER ET AL.
(AC 36164)
DiPentima, C. J., and Lavine and Sheldon, Js.
Argued March 5—officially released June 17, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Sommer, J.)
Jay M. Tyler, self-represented, the appellant
(plaintiff).
Bruce D. Tyler, self-represented, the appellant
(defendant and cross complaint plaintiff).
Kathleen Eldergill, with whom, on the brief, was
Bruce S. Beck, for the appellees (named defendant et
al.).
Opinion
DiPENTIMA, C. J. The self-represented plaintiff, Jay
Tyler, and cross claim plaintiff, Bruce Tyler, appeal
from the judgment of the trial court granting in part the
motion for summary judgment filed by the defendants
Thomas Tyler, Russell Tyler, John Tyler, and Richard
Tatoian.1 There are two claims on appeal. First, the
plaintiffs claim that the court improperly rendered sum-
mary judgment on several counts asserted against
Tatoian. Second, Jay Tyler claims that the court improp-
erly rendered summary judgment on his counts seeking
to modify the trust on the ground of undue influence.
As to the first claim, the decision on the counts relating
to Tatoian was not a final judgment, and we therefore
dismiss that portion of the appeal. As to the second
claim, we agree with Jay Tyler and reverse the judgment
of the court.
This appeal pertains to an irrevocable trust executed
by Ruth Tyler on October 8, 2004, for the benefit of her
sons, John Tyler, Bruce Tyler, Thomas Tyler, Russell
Tyler and Jay Tyler. The trust named Tatoian as trustee
and provided for the termination of the trust upon Ruth
Tyler’s death, with the assets of the trust remaining
after payment of various expenses to be distributed to
her five sons in substantially equal shares. The trust
specified, by reference to Ruth Tyler’s will, that the
shares allotted to the plaintiffs be reduced in accor-
dance with the debt owed by each to Ruth Tyler. On
April 1, 2010, Ruth Tyler died. Due to the value of the
trust’s assets and the amount of debt owed, Jay Tyler
was not entitled to receive any money from the trust.2
The lengthy and convoluted procedural history of
this appeal began on January 28, 2011, when Jay Tyler
commenced an action contesting the trust and alleging,
among other things, that Thomas Tyler had exerted
undue influence over their mother.3 Bruce Tyler, osten-
sibly a defendant in Jay Tyler’s action, responded by
admitting the allegations of undue influence and filing
a cross complaint. The defendants denied Jay Tyler’s
allegations and pleaded several special defenses. After
numerous motions, interlocutory rulings, and amend-
ments to the pleadings, the action ultimately consisted
of (1) two counts asserted by Jay Tyler seeking to mod-
ify the trust on the grounds of undue influence, conspir-
acy, and what the court characterized as ‘‘tortious
interference with the expectancy of inheritance,’’ and
(2) several counts asserted by both Jay Tyler and Bruce
Tyler against Tatoian for negligence and breach of vari-
ous duties.
On April 15, 2013, the defendants filed a motion for
summary judgment. The plaintiffs filed a joint objection.
Both sides submitted affidavits and documentary evi-
dence in support of their positions. The defendants
also moved to strike certain portions of the plaintiffs’
affidavits and documentary evidence. In a memoran-
dum of decision dated August 22, 2013, the court
granted the defendants’ motion to strike some of the
evidence.
On the basis of the remaining evidence and memo-
randa, the court rendered summary judgment on those
counts asserted by Jay Tyler seeking to modify the trust,
concluding that there was no genuine issue of material
fact as to the claim of undue influence and that the
claims of conspiracy and tortious interference necessar-
ily failed without a predicate finding of undue influence.
The court also rendered summary judgment on all but
one of the counts asserted by the plaintiffs against
Tatoian, concluding that General Statutes § 45a-204 and
the terms of the trust barred the claims based on Tatoi-
an’s failure to provide accountings and his alleged mis-
management of the trust.4 The plaintiffs have appealed.
Additional facts and procedural history will be set forth
as necessary.
I
As a threshold matter, we consider whether the ruling
from which the plaintiffs appeal constitutes a final judg-
ment for the purposes of determining the subject matter
jurisdiction of this court.5 After oral argument, we
invited the parties to submit supplemental briefing on
this issue.6 We conclude that the ruling constitutes a
final judgment with respect to Thomas Tyler, John
Tyler, and Russell Tyler, but not with respect to Tatoian.
‘‘The jurisdiction of the appellate courts is restricted
to appeals from judgments that are final. General Stat-
utes §§ 51-197a and 52-263; Practice Book § [61-1]
. . . . The policy concerns underlying the final judg-
ment rule are to discourage piecemeal appeals and to
facilitate the speedy and orderly disposition of cases
at the trial court level. . . . The appellate courts have
a duty to dismiss, even on [their] own initiative, any
appeal that [they lack] jurisdiction to hear.’’ (Internal
quotation marks omitted.) Liberty Mutual Ins. Co. v.
Lone Star Industries, Inc., 290 Conn. 767, 793–94, 967
A.2d 1 (2009).
‘‘A judgment that disposes of only a part of a com-
plaint is not a final judgment . . . unless the partial
judgment disposes of all causes of action against a
particular party or parties; see Practice Book § 61-3; or
if the trial court makes a written determination regard-
ing the significance of the issues resolved by the judg-
ment and the chief justice or chief judge of the court
having appellate jurisdiction concurs. See Practice
Book § 61-4 (a).’’ (Citation omitted; internal quotation
marks omitted.) Harnage v. Commissioner of Correc-
tion, 141 Conn. App. 9, 13–14, 60 A.3d 308 (2013).
Here, the ruling from which the plaintiffs appeal was
a partial judgment, as it did not dispose of the entire
complaint or cross complaint. Nevertheless, the ruling
constitutes a final judgment with respect to Thomas
Tyler, John Tyler and Russell Tyler, as it disposed of
all the counts asserted against them. See Practice Book
§ 61-3. Accordingly, we have jurisdiction to consider
the merits of Jay Tyler’s claim on appeal relating to
those defendants.
On the other hand, the court’s ruling disposed of
only a portion of the plaintiffs’ counts asserted against
Tatoian.7 As the trial court did not make a written deter-
mination regarding the significance of the issues
resolved by the judgment, neither of our rules of prac-
tice conferring final judgment status on a partial judg-
ment applies with respect to Tatoian. Practice Book
§ 61-4. Furthermore, we are not persuaded by the plain-
tiffs’ argument that the court’s ruling is an appealable
interlocutory order under State v. Curcio, 191 Conn.
27, 31, 463 A.2d 566 (1983). Accordingly, we dismiss
the plaintiffs’ appeal with respect to Tatoian for lack
of subject matter jurisdiction.
II
We now consider the merits of Jay Tyler’s claim that
the court improperly rendered summary judgment on
his counts seeking to have the trust modified. Jay Tyler
argues that the court incorrectly concluded that there
was no genuine issue of material fact with regard to
whether Thomas Tyler exerted undue influence over
Ruth Tyler. We agree.
We begin by setting forth the well established stan-
dard of review. ‘‘Pursuant to Practice Book § 17-49,
summary judgment shall be rendered forthwith if the
pleadings, affidavits and any other proof submitted
show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment
as a matter of law. Such questions of law are subject
to plenary appellate review. . . . In deciding whether
the trial court properly determined that there was no
genuine issue of material fact, we review the evidence
in the light most favorable to the nonmoving party. . . .
‘‘Once the moving party has presented evidence in
support of the motion for summary judgment, the
opposing party must present evidence that demon-
strates the existence of some disputed factual issue
. . . . It is not enough, however, for the opposing party
merely to assert the existence of such a disputed issue.
Mere assertions of fact . . . are insufficient to estab-
lish the existence of a material fact and, therefore, can-
not refute evidence properly presented to the court
. . . . It is frequently stated in Connecticut’s case law
that, pursuant to Practice Book §§ 17-45 and 17-46, a
party opposing a summary judgment motion must pro-
vide an evidentiary foundation to demonstrate the exis-
tence of a genuine issue of material fact. . . .
[T]ypically [d]emonstrating a genuine issue requires a
showing of evidentiary facts or substantial evidence
outside the pleadings from which material facts alleged
in the pleadings can be warrantably inferred. . . . A
material fact is one that will make a difference in the
result of the case.’’ (Citations omitted; internal quota-
tion marks omitted.) Marut v. IndyMac Bank, FSB, 132
Conn. App. 763, 767–68, 34 A.3d 439 (2012). Summary
judgment is appropriate where no genuine issue of
material fact exists, and the defendant is entitled to
judgment as a matter of law, with respect to any one
element that the plaintiff is required to prove in order
to prevail at trial. See Sherman v. Bristol Hospital,
Inc., 79 Conn. App. 78, 90–91, 828 A.2d 1260 (2003)
(summary judgment appropriate in medical malpractice
action where no genuine issue of material fact existed
as to essential element of causation); see also Chase
Manhattan Mortgage Corp. v. Machado, 83 Conn. App.
183, 189–90, 850 A.2d 260 (2004) (summary judgment
appropriate in fraud action where no genuine issue of
material fact existed as to third essential element).
Guiding our analysis is the relevant law of undue
influence. ‘‘Undue influence is the exercise of sufficient
control over a person, whose acts are brought into
question, in an attempt to destroy his [or her] free
agency and constrain him [or her] to do something other
than he [or she] would do under normal control. . . .
It is stated generally that there are four elements of
undue influence: (1) a person who is subject to influ-
ence; (2) an opportunity to exert undue influence; (3)
a disposition to exert undue influence; and (4) a result
indicating undue influence. . . . Relevant factors
include age and physical and mental condition of the
one alleged to have been influenced, whether he [or
she] had independent or disinterested advice in the
transaction . . . consideration or lack or inadequacy
thereof for any contract made, necessities and distress
of the person alleged to have been influenced, his [or
her] predisposition to make the transfer in question,
the extent of the transfer in relation to his [or her]
whole worth . . . failure to provide for all of his [or
her] children in case of a transfer to one of them, active
solicitations and persuasions by the other party, and the
relationship of the parties.’’ (Citations omitted; internal
quotation marks omitted.) Pickman v. Pickman, 6
Conn. App. 271, 275–76, 505 A.2d 4 (1986).
On appeal, the issue before us is whether the evidence
submitted by the parties,8 viewed in the light most favor-
able to Jay Tyler, demonstrates a genuine issue of mate-
rial fact as to undue influence. In conducting a plenary
review of the record, we are mindful that the elements
of undue influence are typically questions for the jury.
See Salvatore v. Hayden, 144 Conn. 437, 440, 133 A.2d
622 (1957) (‘‘[u]nder proper instructions from the court,
the questions of the mental capacity of a testator and
undue influence present issues of fact’’); see also Hospi-
tal of Central Connecticut v. Neurosurgical Associates,
P.C., 139 Conn. App. 778, 793, 57 A.3d 794 (2012) (‘‘sum-
mary judgment is ordinarily inappropriate where an
individual’s intent and state of mind are implicated’’
[internal quotation marks omitted]). We also note that
Connecticut courts have consistently held that circum-
stantial evidence is sufficient to support a finding of
undue influence. See Stanton v. Grigley, 177 Conn. 558,
565, 418 A.2d 923 (1979) (‘‘[w]here there is no direct
evidence of influence, a factual foundation supportive
of a reasonable inference that, but for the [defendant’s]
actions, the testator would have made a different dispo-
sition, is sufficient to sustain a finding of undue influ-
ence’’); see also Lancaster v. Bank of New York, 147
Conn. 566, 573, 164 A.2d 392 (1960) (‘‘[d]irect evidence
of undue influence is often unavailable and is not indis-
pensable’’).
The court concluded that there was no genuine issue
of material fact as to three of the four elements of
undue influence. Because Jay Tyler had the burden to
prove all four of the elements, this conclusion prompted
the court to render summary judgment. As they form
the basis for the court’s decision to grant summary
judgment, we limit our plenary review to consideration
of those three elements.9 Reviewing the evidence in the
light most favorable to Jay Tyler, we are persuaded that
there is a genuine issue of material fact as to each.
First, we consider the evidence concerning the first
element, a person subject to undue influence. Bruce
Tyler’s affidavit recounts specific examples regarding
Ruth Tyler’s state of mind during the relevant time
period, such as her inability to remember selling a car
to one of her sons and her submissiveness in being
forced to sell the family farm. This is the type of circum-
stantial evidence from which a jury could reasonably
infer that Ruth Tyler was susceptible to undue
influence.
Next, we consider the evidence concerning the sec-
ond element, the opportunity to exert undue influence.
The affidavits of both Bruce Tyler and Thomas Tyler
discuss Thomas Tyler’s frequent contact with his
mother throughout the relevant time period. This evi-
dence is sufficient to support a finding that he had the
opportunity to exert undue influence over his mother.
Finally, we consider the evidence concerning the
fourth element, a result indicating undue influence.
Here, the evidence of Ruth Tyler’s previous will, con-
trasted with her current will and trust, demonstrates a
stark difference between how her estate was previously
to be distributed and the distribution scheme at the
time of her death. These documents constitute suffi-
cient evidence of a result indicating undue influence to
warrant submission of the issue to the jury.
None of this is to say that a jury ultimately will be
persuaded by the evidence submitted by Jay Tyler. But
given that ‘‘[i]t is the [trier] [of fact’s] exclusive province
to weigh the conflicting evidence, determine the credi-
bility of witnesses and determine whether to accept
some, all or none of a witness’ testimony’’; (internal
quotation marks omitted) Traggis v. Shawmut Bank
Connecticut, N.A., 72 Conn. App. 251, 260, 805 A.2d
105, cert. denied, 262 Conn. 903, 810 A.2d 270 (2002);
we conclude that summary judgment was not appro-
priate in this case.
The appeal is dismissed with respect to Richard
Tatoian. The judgment is reversed as to Jay Tyler’s
counts seeking to modify the trust and the case is
remanded for further proceedings consistent with
this opinion.
In this opinion the other judges concurred.
1
As discussed in this opinion, Bruce Tyler is ostensibly a defendant in
the action commenced by Jay Tyler. Bruce Tyler’s cross complaint asserts
claims only as to Tatoian. For the purpose of clarity in this opinion, we will
refer to Bruce Tyler and Jay Tyler collectively as the plaintiffs, and will
refer to Jay Tyler by name when discussing the allegations in the counts
of his complaint that do not pertain to Tatoian.
We also note that James R. Mapplethorpe and Citigroup Global Markets,
Inc., were named as defendants before the trial court, but are not parties
to this appeal. We refer in this opinion to Thomas Tyler, Russell Tyler, John
Tyler, and Tatoian collectively as the defendants.
2
Under Ruth Tyler’s previous will, each brother’s share was to be calcu-
lated on the basis of his net worth, where the brother with the lowest net
worth would receive payment until his net worth was equal to the net worth
of the brother with the next lowest net worth, and so on. If this distribution
scheme had been in effect at the time of Ruth Tyler’s death, Jay Tyler
allegedly would have received the lion’s share of the estate.
3
As originally pleaded, Jay Tyler also contested the validity of Ruth Tyler’s
will. On June 15, 2011, the court dismissed that portion of the action, along
with several other counts, for being within the exclusive subject matter
jurisdiction of the Probate Court. That decision is not a part of this appeal.
4
Following the court’s ruling, the plaintiffs filed motions to reargue. In
a memorandum of decision dated September 19, 2013, the court granted in
part the motions, vacating its order of summary judgment ‘‘as to the sole
issue of the trustee’s obligation to provide trust accounting to the remain-
der beneficiaries.’’
5
This issue initially was raised by Tatoian in a motion to dismiss filed in
this court pursuant to Practice Book § 61-4 (a). He later withdrew the motion
‘‘in the interests of bringing this matter to conclusion.’’ As ‘‘[n]either the
parties nor the trial court . . . can confer jurisdiction upon [an appellate]
court’’; (internal quotation marks omitted) Liberty Mutual Ins. Co. v. Lone
Star Industries, Inc., 290 Conn. 767, 794, 967 A.2d 1 (2009); we nonetheless
must make a preliminary jurisdictional determination. See id. (‘‘[t]he right
of appeal is accorded only if the conditions fixed by statute and the rules
of court for taking and prosecuting the appeal are met’’ [internal quotation
marks omitted]).
6
The defendants declined the opportunity to submit a supplemental brief.
7
Certain counts against Tatoian have since been resolved at trial.
8
The defendants’ evidence in support of their motion for summary judg-
ment consisted of a copy of the trust agreement, a copy of Ruth Tyler’s
will, affidavits of the defendants, deposition testimony of the parties and
of the manager of the assisted living facility where Ruth Tyler lived at time
of the creation of the trust, and a mental status evaluation of Ruth Tyler
conducted at that facility. Jay Tyler’s evidence in opposition to the motion
consisted of a copy of Ruth Tyler’s previous will, affidavits of the plaintiffs
and deposition testimony of Bruce Tyler.
The court refused to consider certain portions of the plaintiffs’ affidavits
because they were not based on personal knowledge. The court also refused
to consider a letter and various newspaper clippings submitted by Jay Tyler
because they were unauthenticated, contained hearsay statements and were
irrelevant. Finally, the court chose to disregard a document that appeared
to be Jay Tyler’s answers to the defendants’ interrogatories because the
disregarded statements were not supported by specific facts. As the plaintiffs
have not challenged these determinations on appeal, we will take into
account only that evidence considered by the court.
9
The court determined that a genuine issue existed as to whether Thomas
Tyler had a disposition to exert undue influence.