Smigelski v. Dubois ( 2014 )

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JACEK I. SMIGELSKI v. MARK A. DUBOIS,
CHIEF DISCIPLINARY COUNSEL
(AC 35793)
DiPentima, C. J., and Alvord and Keller, Js.
Argued April 14—officially released September 30, 2014
(Appeal from Superior Court, judicial district of New
Britain, Abrams, J.)
Jacek I. Smigelski, self-represented, the appellant
(petitioner).
Suzanne B. Sutton, first assistant chief disciplinary
counsel, with whom was Beth Baldwin, assistant disci-
plinary counsel, for the appellee (respondent).
Opinion
KELLER, J. The petitioner, Jacek I. Smigelski, an
attorney formerly licensed to practice law in the state
of Connecticut, appeals from the summary judgment
rendered in favor of the respondent, Mark A. Dubois,
chief disciplinary counsel, on the petitioner’s petition
for a new trial.1 On appeal, the petitioner claims that
the trial court improperly determined that, as a matter
of law, the petitioner was not entitled to a new trial
because (1) there was no newly discovered evidence
upon which the petitioner could base his claim; (2) the
trial court did not render its judgment on the basis of
fraud; and (3) the petitioner’s right to due process of
law had not been violated. The petitioner also argues
that should a new trial be ordered, he is entitled to
vacatur of several Superior Court and Appellate Court
judgments related to this action that previously were
rendered against him.2 We disagree and, accordingly,
affirm the judgment of the trial court.
The following undisputed facts and procedural his-
tory are relevant to our resolution of the petitioner’s
claims. The petitioner formerly was a defendant in a
presentment action brought by the respondent, who at
the time was chief disciplinary counsel for the state.
See generally 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 presentment charged
the petitioner with violating rules 1.5 (a) and 1.15 (b) of
the Rules of Professional Conduct (2006) in connection
with his representation of the estate of Stanislaw Kosi-
orek. The petitioner was retained by written agreement
by the executor of the estate, Stanley Kosiorek.3 The
retainer agreement provided that ‘‘the fee for legal ser-
vices rendered by [the petitioner], will be based on an
hourly charge of $225.00 per hour or it will be contingent
upon recovery of benefits and shall be ONE-THIRD of
the gross judgment or settlement, which ever amount
is greater.’’ Additionally, Stanley Kosiorek paid the peti-
tioner a retainer of $5000.
Specifically, the petitioner was retained by the estate
to assist it in clearing the title to a property located at
28 Terra Road in Plainville. After Stanislaw Kosiorek’s
death, the heirs discovered that, less than one year
earlier, he had married Bronislawa Kosiorek and had
transferred to her a survivorship interest, by way of a
quitclaim deed, in the Terra Road property. The prop-
erty was the estate’s only asset. Suspecting that Bronis-
lawa Kosiorek, who was nineteen years younger than
her late husband, had exercised undue influence or
engaged in outright forgery in obtaining the survivor-
ship interest in the property, the heirs brought a civil
action to have the transfer set aside. Settlement negotia-
tions, however, had broken down when Bronislawa
Kosiorek refused to accept a payment of less than
$45,000 to execute a quitclaim of the property back to
the estate. The petitioner eventually assisted the heirs
in obtaining a favorable settlement with Bronislawa
Kosiorek, paying her $35,000, instead of the $45,000
that she originally demanded, in exchange for a quit-
claim deed of the property back to the estate.4
Thereafter, with the approval of the Plainville Probate
Court, the heirs agreed to sell the Terra Road property
to Stanley Kosiorek’s son and daughter-in-law, Adam
Kosiorek and Kylie Kosiorek, for $212,500. The heirs
also agreed that to facilitate the sale of the property, the
estate would contribute to the buyer a ‘‘gift of equity’’ in
the amount of $42,500 as a down payment for the buyers’
mortgage. On December 21, 2006, the petitioner repre-
sented the estate at the closing for the sale of the prop-
erty where Stanley Kosiorek signed the paperwork and
authorized a check in the amount of $155,300.82,5 the
proceeds from the sale, to be made out to ‘‘Jacek Smigel-
ski, Trustee.’’
On December 26, 2006, Stanley Kosiorek went to the
petitioner’s office to retrieve the check for the funds
payable to the estate. The petitioner explained that the
value of the property was $257,000, and, under the terms
of the retainer agreement, his fees amounted to one
third of that amount, or $85,665.81. Significantly, the
petitioner relied on a comparative market analysis that
valued the property at $257,000 in calculating his fee.
The petitioner added to his fee $1004.99 in probate
fees and subtracted the retainer of $5000 as well as a
‘‘courtesy’’ discount of $14,832.48, resulting in a total
due to the petitioner of $66,838.32 in legal fees. This
amount was subtracted from the net proceeds of the
closing and paid to the petitioner, leaving the estate
with $88,462.50.
On December 30, 2006, Stanley Kosiorek’s brother,
Kazimierz Kosiorek,6 filed a complaint with the State-
wide Grievance Committee in which he alleged that the
petitioner had violated rules 1.5 (a)7 and 1.15 (b)8 of the
Rules of Professional Conduct (2006) by withholding a
portion of the settlement proceeds from the sale of
the property by the estate, which Kazimierz Kosiorek
alleged rightfully belonged to the estate.9
Following a finding of probable cause by a local griev-
ance panel, the reviewing committee of the Statewide
Grievance Committee held an evidentiary hearing at
which the respondent tried the case. Pursuant to Prac-
tice Book § 2-47, the Statewide Grievance Committee
thereafter issued a decision in which it directed disci-
plinary counsel to file a presentment against the peti-
tioner in the Superior Court. The presentment filed by
disciplinary counsel, dated November 28, 2008, charged
the petitioner with violating rule 1.5 (a) of the Rules of
Professional Conduct (2006) by charging a fee that was
unreasonable in light of the relevant circumstances and
violating rule 1.15 (b) of the Rules of Professional Con-
duct (2006) by distributing funds to himself, as his fee,
out of the proceeds of the sale of the property rather
than seeking payment from the executor and for refus-
ing to return the proceeds upon demand.
The presentment was tried before the court, Pittman,
J., by Assistant Chief Disciplinary Counsel Suzanne B.
Sutton over the course of two days. On August 31, 2009,
in a memorandum of decision, the court found that the
disciplinary counsel had proven by clear and convincing
evidence that the petitioner, intentionally and wilfully,
had violated rule 1.5 (a) of the Rules of Professional
Conduct (2006) by charging an unreasonable fee, and
accordingly ordered a three month period of suspension
from the practice of law.10 The court also found that
the petitioner had violated rule 1.15 (b) of the Rules of
Professional Conduct (2006) by distributing funds to
himself, as his fee, out of the sale proceeds instead of
seeking payment from the executor of the estate, and
for refusing to return those sums to the estate, as
ordered by the Probate Court; see footnote 9 of this
opinion; or to place them in escrow as ordered by the
presentment court, Pittman, J. Accordingly, the court
imposed an additional twelve month suspension from
the practice of law.11 On appeal, this court affirmed
the trial court’s decision. See Disciplinary Counsel v.
Smigelski, supra, 124 Conn. App. 81.
Prior to the presentment proceeding, in 2007, Stanley
Kosiorek, as executor of his father’s estate, brought
a civil action against the petitioner. See Kosiorek v.
Smigelski, 138 Conn. App. 695, 54 A.3d 564 (2012), cert.
denied, 308 Conn. 901, 60 A.3d 287 (2013). During the
course of those proceedings, it was revealed that a real
estate appraisal of the property, dated September 29,
2006, had been performed which valued the property
at $254,000.12 This appraisal was included as an itemized
payment on the United States Department of Housing
and Urban Development’s HUD-1 settlement statement
(HUD-1) that had been prepared in connection with
the buyers’ application for a mortgage. Specifically, the
HUD-1 listed, as an item payable from the borrower’s
funds at settlement, an ‘‘Appraisal Fee’’ payable to ‘‘L.R.
Evjen Appraisal Services’’ in the amount of $350. When
the grievance proceedings commenced, the HUD-1 was
sent to the petitioner as an exhibit attached to the
grievance complaint. The petitioner acknowledged
receipt of the grievance complaint in a response dated
February 2, 2007. The September 29, 2006 appraisal was
not used as evidence in the presentment action.
The petitioner filed the present petition for a new
trial on October 28, 2010. Therein, the petitioner made
the following allegations. Both the grievance panel and
the reviewing committee, in finding probable cause that
the petitioner had committed professional misconduct
by charging an unreasonable fee, ‘‘substantially relied
on the ‘gross value of real estate’ or the [comparative]
market analysis,’’ which valued the property at
$257,000. The petitioner also alleges that the trial court,
in rendering its final decision against the petitioner,
also ‘‘substantially relie[d]’’ on the comparative market
analysis valuing the property at $257,000.13
Further, the petitioner alleges that Stanley Kosiorek
had been aware of the September 29, 2006 appraisal
since September, 2006, but ‘‘intentionally failed to dis-
close [the appraisal] and fraudulently manipulated [the]
court, the grievance panel, [and] the reviewing commit-
tee . . . in order to pervert or subvert the truth . . . .’’
Similarly, the petitioner alleges that the respondent
‘‘knew or should have known about this appraisal . . .
but negligently or intentionally failed to disclose [it]
to the disciplinary grievance panel, to the reviewing
committee, or to the court or to the [petitioner].’’ The
petitioner alleges that Stanley Kosiorek committed
fraud by misrepresenting to the court that there was
an additional appraisal valuing the property at $170,000,
rather than $254,000, and that disciplinary counsel
should have corrected the misrepresentation, implicat-
ing the petitioner’s right to due process of law.14 The
gravamen of the petitioner’s allegations appears to be
that because the property values in the comparative
market analysis and the September, 29, 2006 appraisal
are ‘‘virtually identical,’’ the grievance panel, the
reviewing committee, and the court likely would have
found the petitioner’s fee reasonable had they been
aware of the September, 29, 2006 appraisal. The peti-
tioner appears to argue that because these two valua-
tions indicate a relatively high market value, as opposed
to the $170,000 figure stated at trial, the court would
have found his $66,838.32 fee to be reasonable.
The respondent filed a motion for summary judgment
and memorandum of law on October 2, 2012, to which
the petitioner objected. Therein, the respondent argued
that he was entitled to summary judgment as a matter
of law in the absence of any genuine issue of material
fact as to whether (1) the September 29, 2006 appraisal
does not constitute newly discovered evidence and
therefore is not grounds for a new trial; and (2) the
judgment rendered against the petitioner was not
obtained as a result of fraud on the court. In the petition-
er’s memorandum of law in opposition to the motion
for summary judgment, he rejected the respondent’s
claims and asserted that he is entitled to a new trial on
the ground that his right to due process was violated
by the respondent’s failure to disclose the September
29, 2006 appraisal or correct Stanley Kosiorek’s testi-
mony that the property was appraised at $170,000. In
support of its motion for summary judgment, the
respondent submitted, inter alia, the affidavits of Assis-
tant Chief Disciplinary Counsel Sutton and Elizabeth
M. Rowe, assistant bar counsel for the Office of State-
wide Bar Counsel. The petitioner submitted, in addition
to other documentary evidence, his own affidavit.
Oral argument on the motion for summary judgment
was heard on January 22, 2013, and the court, Abrams,
J., issued a written order and memorandum of decision
granting the respondent’s motion on May 9, 2013.
Therein, the court concluded that ‘‘the [petitioner] rea-
sonably could have discovered the September 29, 2006
appraisal in the exercise of due diligence in preparation
for his 2008 presentment trial and, as a result, the
appraisal does not constitute newly discovered evi-
dence, entitling the [respondent] to judgment as a mat-
ter of law . . . .’’ The court then found that there was
no genuine issue of material fact as to the issues of
whether the judgment rendered against the petitioner
was granted on the basis of fraud, or whether the peti-
tioner’s right to due process was violated. Accordingly,
the court granted the respondent’s motion for summary
judgment. The petitioner filed a motion to reargue on
May 28, 2013, which the court denied. This appeal fol-
lowed. Additional facts will be set forth as necessary.
As a preliminary matter, we set forth the standard of
review and other legal principles that guide our analysis.
‘‘The standard of review of motions for summary judg-
ment is well settled. Practice Book § 17-49 provides
that 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. In deciding a motion for summary
judgment, the trial court must view the evidence in the
light most favorable to the nonmoving party. . . . The
party moving for summary judgment has the burden of
showing the absence of any genuine issue of material
fact and that the party is, therefore, entitled to judgment
as a matter of law. . . . On appeal, we must determine
whether the legal conclusions reached by the trial court
are legally and logically correct and whether they find
support in the facts set out in the memorandum of
decision of the trial court. . . . Our review of the trial
court’s decision to grant [a moving party’s] motion for
summary judgment is plenary. . . .
‘‘In seeking summary judgment, it is the movant who
has the burden of showing the nonexistence of any
issue of fact. . . . To satisfy his burden the movant
must make a showing that it is quite clear what the
truth is, and that excludes any real doubt as to the
existence of any genuine issue of material fact. . . .
[I]t is only [o]nce [the] [movant’s] burden in establishing
his entitlement to summary judgment is met [that] the
burden shifts to [the] [nonmovant] to show that a genu-
ine issue of fact exists justifying a trial.’’ (Citations
omitted; internal quotation marks omitted.) Deutsche
Bank Trust Co. Americas v. DeGennaro, 149 Conn.
App. 784, 786–87, 89 A.3d 969 (2014).
I
The petitioner argues that the court improperly con-
cluded that as a matter of law, the September 29, 2006
appraisal did not constitute newly discovered evidence
upon which the petitioner could base his claim for a
new trial. We are not persuaded.
The petitioner argues that because the September
29, 2006 appraisal constitutes new evidence, he was
entitled to a new trial pursuant to General Statutes § 52-
270 (a). Section 52-270 (a) provides in relevant part:
‘‘The Superior Court may grant a new trial of any action
that may come before it, for mispleading, the discovery
of new evidence or want of actual notice of the action
to any defendant or of a reasonable opportunity to
appear and defend, when a just defense in whole or
part existed . . . .’’ (Emphasis added.) ‘‘The statute
applies to criminal as well as civil actions.’’ Thomas v.
State, 130 Conn. App. 533, 544, 24 A.3d 12, cert. denied,
302 Conn. 945, 30 A.3d 2 (2011).
‘‘Pursuant to § 52-270, a [party] may petition the Supe-
rior Court for a new trial on the basis of newly discov-
ered evidence. See Practice Book § 42-55. A trial court’s
decision on that ground is governed by the standard
set forth in Asherman v. State, 202 Conn. 429, 434, 521
A.2d 578 (1987), and further refined in Shabazz v. State,
259 Conn. 811, 827–28, 792 A.2d 797 (2002). Under the
Asherman standard, a court is justified in granting a
petition for a new trial when the petitioner demon-
strates that the evidence offered in support thereof: (1)
is newly discovered such that it could not have been
discovered previously despite the exercise of due dili-
gence; (2) would be material to the issues on a new
trial; (3) is not cumulative; and (4) is likely to produce
a different result in the event of a new trial. . . . This
strict standard is meant to effectuate the underlying
equitable principle that once a judgment is rendered it
is to be considered final, and should not be disturbed by
posttrial motions except for a compelling reason. . . .
‘‘[I]n determining whether a different result would
be produced in a new trial, a trial court necessarily
must engage in some form of credibility analysis. . . .
The trial court must always consider the newly discov-
ered evidence in the context of the evidence presented
in the original trial. . . . [Thus, if] the trial court deter-
mines that the evidence is sufficiently credible so that,
if a second [finder of fact] were to consider it together
with all of the original trial evidence, it probably would
yield a different result or otherwise avoid an injustice,
the fourth element of the Asherman test would be satis-
fied. . . . By a different result, we mean that the new
evidence would be likely to result in acquittal of the
petitioner, not merely that it might cause one or more
jurors to have a reasonable doubt about the petitioner’s
guilt. . . . Finally and significantly, it is well settled
that whether the evidence satisfies the aforementioned
standard is within the trial court’s sole discretion, and
the judgment of the trial court will be set aside on
appeal only if it reflects a clear abuse of discretion.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Skakel v. State, 295 Conn. 447, 466–68,
991 A.2d 414 (2010).
‘‘Whether trial counsel has fulfilled his or her duty
to conduct a reasonable investigation forms the linchpin
issue in a petition for a new trial made on the basis of
newly discovered evidence. [T]o entitle a party to a new
trial for newly-discovered evidence, it is indispensable
that he should have been diligent in his efforts fully to
prepare his cause for trial; and if the new evidence
relied upon could have been known with reasonable
diligence, a new trial will not be granted. . . . There-
fore, [t]he [petitioner] has the burden of proving that
the evidence . . . could not have been discovered and
produced [in] the former trial by the exercise of due
diligence . . . . Due diligence does not require omni-
science. Due diligence means doing everything reason-
able, not everything possible. . . . The question which
must be answered is not what evidence might have
been discovered, but rather what evidence would have
been discovered by a reasonable [petitioner] by perse-
vering application, [and] untiring efforts in good ear-
nest.’’ (Citations omitted; internal quotation marks
omitted.) Id., 506–507.
On the basis of the evidence before it, the court first
turned to the issue of whether the evidence offered in
support of the petitioner’s claim for a new trial was
newly discovered, meaning that it could not have been
discovered previously despite the exercise of due dili-
gence. The court determined that the ‘‘[respondent] had
produced evidence to show the nonexistence of any
genuine issue of material fact as to [the] claim that the
September 29, 2006 appraisal does not constitute newly
discovered evidence because the [petitioner] reason-
ably could have discovered the appraisal at the time of
his trial through the exercise of due diligence.’’ In turn,
the petitioner failed to produce any evidence that gave
rise to a disputed issue of material fact concerning
whether the appraisal was unknown or undiscoverable
through the exercise of due diligence at or prior to the
presentation. We agree with the court.
The petitioner in the present case hardly can argue
that he presented the court with evidence demonstra-
ting that he employed ‘‘persevering application, [and]
untiring efforts in good earnest’’ to discover the con-
tents of the appraisal at issue. (Internal quotation marks
omitted.) Skakel v. State, supra, 295 Conn. 507. As the
court noted, the petitioner was in possession of a copy
of the HUD-1 form that indicated that an ‘‘appraisal fee’’
in the amount of $350 was to be paid by the buyers to
‘‘L.R. Evjen Appraisal Services.’’ Rowe, an assistant bar
counsel with the Office of Statewide Bar Counsel,
averred in her affidavit that in the course of her duties
assisting the Statewide Grievance Committee, she sent
to the petitioner a copy of the grievance complaint filed
against him. Attached to the grievance complaint was
a copy of the HUD-1, dated December 21, 2006, and
noting the payment of an appraisal fee. She further
averred that the copy of the grievance complaint and
HUD-1 were not returned to her. The petitioner has
failed to present any evidence indicating that he did
not receive the complaint and HUD-1, and, indeed, he
responded to the complaint in a letter dated February
2, 2007, in which he acknowledged the complaint
against him.
A reasonable investigation and reading of the HUD-
1 certainly would have notified the petitioner of the
existence of a real estate appraisal aside from the com-
parative market analysis on which he ultimately relied
in calculating his fee. Although the HUD-1 simply
reveals the existence of the appraisal, and not its con-
tents, the petitioner does not offer any evidence to
suggest that the appraisal could not have been discov-
ered through the exercise of due diligence. Indeed, he
offers no evidence or explanation as to what efforts he
undertook to learn of the September 29, 2006 appraisal.
‘‘[T]he burden of showing due diligence [rests] solely
and throughout on the [petitioner].’’ (Internal quotation
marks omitted.) Terracino v. Fairway Asset Manage-
ment, Inc., 75 Conn. App. 63, 75, 815 A.2d 157, cert.
denied, 263 Conn. 920, 822 A.2d 245 (2003); see also
Asherman v. State, supra, 202 Conn. 434 (‘‘[t]he peti-
tioner must demonstrate, by a preponderance of the
evidence, that . . . the proffered evidence is newly dis-
covered, such that it could not have been discovered
earlier by the exercise of due diligence’’). The petitioner
has failed to meet his burden of showing that there was
an issue of genuine fact as to whether he exercised
due diligence in attempting to discover and obtain the
appraisal. Indeed, a thorough review of the record indi-
cates the opposite.
‘‘[D]ue diligence is a condition precedent to success-
fully prosecuting a petition for a new trial . . . .’’ (Cita-
tion omitted.) Terracino v. Fairway Asset
Management, Inc., supra, 75 Conn. App. 80. In light of
our conclusion that the court correctly determined that,
as a matter of law, and in the absence of any genuine
issue of material fact, the petitioner failed to demon-
strate that the September 29, 2006 appraisal could not
have been discovered through the exercise of due dili-
gence, we need not address whether the evidence was
material to the issues or likely to produce a different
result in a new trial.
II
The petitioner next claims that the court improperly
granted the respondent’s motion for summary judgment
by finding, as a matter of law, that the judgment ren-
dered against him was not a result of a fraud on the
court and that the petitioner therefore was not entitled
to a new trial.
‘‘[I]n all contexts, when one party has made fraudu-
lent representations to a court, or caused a court to be
misled in some way, it could be said generally that the
party has committed fraud on the court. . . . The statu-
tory remedy for fraud on the court is that the Superior
Court may grant a new trial for reasonable cause; Gen-
eral Statutes § 52-270 (a); which includes every cause
for which a court of equity could grant a new trial,
such as, for example, fraud, accident and mistake.’’
(Footnote omitted; internal quotation marks omitted.)
Simms v. Seaman, 129 Conn. App. 651, 659, 23 A.3d 1
(2011) aff’d, 308 Conn. 523, 69 A.3d 880 (2013). ‘‘Fraud
consists in deception practiced in order to induce
another to part with property or surrender some legal
right, and which accomplishes the end designed.’’
(Internal quotation marks omitted.) Billington v. Bill-
ington, 220 Conn. 212, 217, 595 A.2d 1377 (1991).
‘‘In Varley v. Varley, 180 Conn. 1, 4, 428 A.2d 317
(1980), our Supreme Court imposed four requirements
on those seeking relief from a judgment secured by
fraud: ‘(1) There must have been no laches or unreason-
able delay by the injured party after fraud was discov-
ered. (2) There must have been diligence in the original
action, that is, diligence in trying to discover and expose
the fraud. (3) There must be clear proof of the perjury
or fraud. (4) There must be a substantial likelihood that
the result of the new trial will be different.’ . . . The
court, in Varley, explained: ‘Where an unsuccessful
party has been prevented, by fraud or deception, from
exhibiting fully his case . . . a new suit may be sus-
tained to set aside and annul the former judgment and
open the case for a new and fair hearing.’ ’’ (Footnote
omitted.) Duart v. Dept. of Correction, 116 Conn. App.
758, 769, 977 A.2d 670 (2009), aff’d, 303 Conn. 479, 34
A.3d 343 (2012). Our Supreme Court later modified the
fourth requirement and ‘‘rephras[ed] the fourth prong
to require a movant to demonstrate a reasonable proba-
bility, rather than a substantial likelihood, that the result
of a new trial will be different.’’ Duart v. Dept. of Correc-
tion, 303 Conn. 479, 491, 34 A.3d 343 (2012).
The petitioner appears to argue that the judgment
rendered against him was secured by fraud because
Stanley Kosiorek represented to the court that a real
estate appraisal had valued the property at $170,000,
and the respondent failed to correct this misrepresenta-
tion where the appraisal valued the property at
$254,000. We are not convinced. Although on redirect
examination Stanley Kosiorek represented to the court
that an additional appraisal performed in connection
with Adam Kosiorek’s application for a mortgage valued
the property at $170,000, this statement was stricken
from the record. See footnote 14 of this opinion. Addi-
tionally, Sutton, the assistant chief disciplinary counsel
who tried the presentment, averred in her affidavit that
she was not in possession of the September 29, 2006
appraisal, nor had she ever sought to obtain it because
she did not believe it to be relevant to the issues
addressed in the grievance complaint. As such, she was
unaware of the contents of the appraisal or the fact
that Stanley Kosiorek’s remark concerning $170,000,
was, in fact, a misrepresentation. The petitioner failed
to produce any evidence suggesting that the court was
induced to render judgment against him on the basis
of testimony that it had stricken from the record, or
that the respondent permitted the court to be swayed
by testimony that he knew to be false.
We therefore conclude that the court properly found
that the petitioner failed to provide evidence during
the hearing on the respondent’s motion for summary
judgment that supported his claim of fraud. Accord-
ingly, the court properly granted the respondent’s
motion for summary judgment on the grounds of
absence of fraud on the court.
III
The petitioner finally claims that his rights to due
process of law and a fair trial were violated by the
respondent’s ‘‘failure to correct the false and misleading
testimony of [Stanley Kosiorek],’’ and failure to disclose
the materially favorable evidence of the Evjen appraisal,
in violation of Brady v. Maryland, 373 U.S. 83, 83 S.
Ct. 1194, 10 L. Ed. 2d 215 (1963).15 The petitioner argues
that he is therefore entitled to a new trial. We disagree.
As a preliminary matter, we set forth the legal princi-
ples relevant to this due process claim. ‘‘Because a
license to practice law is a vested property interest and
disciplinary proceedings are adversary proceedings of
a quasi-criminal nature, an attorney subject to discipline
is entitled to due process of law. . . .
‘‘Due process does not mandate a particular proce-
dure but rather requires only that certain safeguards
exist in whatever procedural form is afforded. . . . In
[presentment] proceedings such as this a defendant is
entitled to notice of the charges against him, to a fair
hearing, and a fair determination, in the exercise of a
sound judicial discretion, of the questions at issue, and
to an appeal to [an appellate] court for the purpose of
having it determined whether or not he has in some
substantial manner been deprived of such rights. . . .
‘‘The ultimate question is whether he is a fit person
to be longer allowed the privileges of being an attorney.
. . . His relations to the tribunal and the character and
purpose of the inquiry are such that unless it clearly
appears that his rights have in some substantial way
been denied him, the action of the court will not be set
aside upon review.’’ (Citations omitted; internal quota-
tion marks omitted.) Disciplinary Counsel v. Villen-
euve, 126 Conn. App. 692, 701–702, 14 A.3d 358 (2011).
Recognizing that the petitioner’s grievance hearing
was quasi-criminal in nature, the trial court proceeded
to analyze the petitioner’s due process claim concerning
the September 29, 2006 appraisal under Brady.16 Neither
party, before the trial court or on appeal, has questioned
Brady’s applicability; both parties have briefed the pre-
sent claim under Brady without citing any authority
that supports the proposition that Brady applies in dis-
ciplinary proceedings brought against members of the
bar. Despite the parties’ reliance on Brady, however,
it does not govern the present claim. In Gonzalez v.
State Elections Enforcement Commission, 145 Conn.
App. 458, 479, 77 A.3d 790, cert. denied, 310 Conn. 954,
81 A.3d 1181 (2013), this court held that Brady did not
apply in a civil enforcement action brought by the state
against a state representative. The court rejected the
plaintiff’s claim that the defendant, the State Elections
Enforcement Commission, was required to provide her
with exculpatory information during an administrative
hearing held to determine whether she had violated
state election law. Id., 476. This court, relying on rele-
vant precedent, stated: ‘‘Our case law amply demon-
strates that Brady applies only to defendants in criminal
prosecutions. . . . Due process requires such an obli-
gation to protect the innocent from erroneous convic-
tion and ensur[e] the integrity of our criminal justice
system. . . . This case is not a criminal action, but
rather a civil enforcement action and, thus, the require-
ments of Brady do not apply.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Id., 479. Although we recognize that a civil enforcement
action, such as that at issue in Gonzalez, is distinguish-
able from a disciplinary hearing brought against a mem-
ber of the bar, such as that at issue in the present case,
it is clear that neither type of proceeding is a criminal
prosecution. Because Gonzalez unambiguously limits
Brady’s applicability to criminal prosecutions, we are
guided by that decision and, thus, reject the petitioner’s
due process claim that the respondent had any obliga-
tion to correct Kosiorek’s testimony or to provide him
with any evidence favorable to his case.
The gist of the petitioner’s claim is that the hearing
was unfair because the respondent effectively sup-
pressed evidence of the September 29, 2006 appraisal.
Although we conclude that Brady does not apply in the
present case, Brady nonetheless provides some guid-
ance in our evaluation of the due process claim raised
by the petitioner. ‘‘[I]t is well established that evidence
is not considered to have been suppressed within the
meaning of the Brady doctrine if the defendant or his
attorney either knew, or should have known, of the
essential facts permitting him to take advantage of
[that] evidence. . . . The rationale underlying this
exception to the state’s disclosure obligation under
Brady is obvious: Brady is designed to assure that the
defendant is not denied access to exculpatory evidence
known or available to the state but unknown or unavail-
able to him. . . . It is not intended either to relieve the
defense of its obligation diligently to seek evidence
favorable to it or to permit the defense to close its eyes
to information likely to lead to the discovery of such
evidence.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) State v. Skakel, 276
Conn. 633, 701–702, 888 A.2d 985, cert. denied, 549 U.S.
1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006). Even were
we to consider the claim under the stringent standard
codified in Brady, the petitioner has failed to present
evidence demonstrating a genuine issue of material fact
as to whether he was deprived of his rights to due
process and a fair trial. As previously noted, the respon-
dent presented evidence that the September 29, 2006
appraisal was disclosed on the HUD-1 form, which was
sent to the petitioner and in his possession. Although
the respondent did not produce the September 29, 2006
appraisal, the record reflects that the petitioner had
actual notice of the existence of the appraisal by virtue
of being listed on the HUD-1, and, accordingly, it was
incumbent upon him to exercise due diligence and take
advantage of that evidence.17
The judgment is affirmed.
In this opinion the other judges concurred.
1
As a result of professional misconduct that is the subject of this opinion,
the petitioner was suspended from the practice of law for fifteen months,
effective March 3, 2011. See generally 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
petitioner represents that as of the date of this appeal, he has not applied
for reinstatement and is presently suspended from the practice of law.
2
Specifically, the petitioner argues that we should exercise our supervi-
sory power to vacate the following judgments: Kosiorek v. Smigelski, 138
Conn. App. 695, 54 A.3d 564 (2012), cert. denied, 308 Conn. 901, 60 A.3d
287 (2013); Disciplinary Counsel v. Smigelski, Superior Court, judicial
district of New Britain, Docket No. CV-08-4019323 (August 31, 2009), aff’d,
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);
and Kosiorek v. Smigelski, Superior Court, judicial district of New Britain,
Docket No. CV-07-4014607 (December 1, 2011).
3
Stanley Kosiorek is the son of Stanislaw Kosiorek.
4
In the petitioner’s direct appeal from the judgment rendered in the pre-
sentment proceeding, this court noted that the petitioner ‘‘acknowledged
that ‘I was asked just to draft the contract and go to Probate Court [to have
the contract approved].’ ’’ Disciplinary Counsel v. Smigelski, supra, 124
Conn. App. 90 n.9. The petitioner ‘‘conceded that the legal services to which
his fee agreement pertained did not include negotiation of the sales price
of the Kosiorek estate’s property.’’ Id., 90.
5
According to the United States Department of Housing and Urban Devel-
opment’s HUD-1 settlement statement prepared in connection with the clos-
ing, this sum represented the sales price of $212,500, less the gift of equity
of $42,500, and less approximately $14,700 in adjustments and closing costs.
6
Kazimierz Kosiorek, along with his seven brothers and sisters, are the
heirs to the estate.
7
Rule 1.5 (a) of the Rules of Professional Conduct (2006) provides: ‘‘A
lawyer’s fee shall be reasonable. The factors to be considered in determining
the reasonableness of a fee include the following:
‘‘(1) The time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
‘‘(2) The likelihood, if made known to the client, that the acceptance of
the particular employment will preclude other employment by the lawyer;
‘‘(3) The fee customarily charged in the locality for similar legal services;
‘‘(4) The amount involved and the results obtained;
‘‘(5) The time limitations imposed by the client or by the circumstances;
‘‘(6) The nature and length of the professional relationship with the client;
‘‘(7) The experience, reputation, and ability of the lawyer or lawyers
performing the services; and
‘‘(8) Whether the fee is fixed or contingent.’’
8
Rule 1.15 (b) of the Rules of Professional Conduct (2006) provides:
‘‘Upon receiving funds or other property in which a client or third person
has an interest, a lawyer shall promptly notify the client or third person.
Except as stated in this rule or otherwise permitted by law or by agreement
with the client, a lawyer shall promptly deliver to the client or third person
any funds or other property that the client or third person is entitled to
receive and, upon request by the client or third person, shall promptly render
a full accounting regarding such property.’’
9
On January 23, 2007, the Plainville Probate Court conducted a hearing
on the final accounting for the estate, at which the petitioner appeared. In
a memorandum of decision dated May 21, 2007, the court found that the
petitioner’s claimed fee of $66,838.32, in light of the $212,500 sales price of
the property, was unreasonable. Instead, the Probate Court allowed for a
fee of $15,000, plus $1000 for reimbursement of costs. The court ordered
the petitioner to return the remaining sum of $54,833.33 to the estate. To
date, the petitioner has neither complied with this order nor has he appealed
from the Probate Court’s decision.
10
The court stated: ‘‘[I]n calculating the value of the recovery of the real
estate as a benefit to the estate, [the petitioner] chose a figure as the value
of the real estate that was not the fair market value. The figure $257,000
was an estimated sales price derived from a comparative market analysis
. . . . The court finds the $257,000 figure to be objectively and subjectively
unreasonable in light of the actual sales price for the real estate approved
in 2006 by the Probate Court with the active participation of the [petitioner]
who ultimately performed work on the closing.’’
11
The court also imposed several conditions on the petitioner’s reinstate-
ment. In order to be readmitted to practice law, he was required to pass
the Multistate Professional Responsibility Examination, as well as to ‘‘[place]
the sum of $54,833.33 in escrow . . . .’’
12
The September 29, 2006 appraisal included a condition to this valuation.
It stated: ‘‘The estimated value in this report is being done subject to installa-
tion of kitchen cabinets, countertops & flooring. The kitchen and half bath
to have finished plumbing and new fixtures. The unfinished floors in the
3rd bedroom and finished lower level to have new finished flooring.’’
13
In the direct appeal, this court observed that in calculating his fee, the
petitioner, ‘‘immediately after the closing . . . relied on an estimated mar-
ket price of $257,000 that bore no relationship to the sale price that the
estate actually received for the property. . . . [T]here is no . . . nexus
between the [petitioner’s] services and the market value, however calculated,
of the Kosiorek estate.’’ Disciplinary Counsel v. Smigelski, supra, 124 Conn.
App. 90.
14
The following exchange occurred between disciplinary counsel and
Stanley Kosiorek on redirect examination:
‘‘Q. . . . Now, during [cross-examination], the comparative market analy-
sis was brought to your attention.
‘‘A. Mm-hm.
‘‘Q. And during that time, you said something like, that was not our
appraisal.
‘‘A. Right.
‘‘Q. Is there another appraisal?
‘‘A. There was. Before that, the bank appraisal before the closing, before,
the bank requires an appraisal for the buyers.
‘‘Q. When you say the bank, what do you mean? What bank?
‘‘A. Honestly, I can’t recall that because that’s the bank that they was
going to get the mortgage from.
‘‘Q. That who was going to get the mortgage?
‘‘A. My son.
...
‘‘Q. So, to your knowledge, they ordered an appraisal?
‘‘A. Yeah, that mandatory that they have to have the mortgage appraisal—
the house appraised for them to get the mortgage.
...
‘‘Q. Okay. And do you know what that appraisal came in at, the value?
‘‘A. One seventy.’’
The petitioner objected to Stanley Kosiorek’s answer on the basis of
hearsay and moved that his answer be stricken. The court sustained the
objection and struck from the record Stanley Kosiorek’s statement. The
following exchange then occurred between disciplinary counsel and Stan-
ley Kosiorek:
‘‘Q. And based on the appraisal that came in, was your son able to get a
loan for the closing?
‘‘A. Yes.
‘‘Q. Was—based on $170,000 sale price?
‘‘A. No. To get the hundred percent of the mortgage, they, for some reason,
somehow, they raise it, two hundred and twelve, whatever.
‘‘Q. And did your son borrow all $212,000?
‘‘A. No.’’
‘‘Q. How much did he borrow?
‘‘A. One seventy.’’
15
The petitioner asserts his right to due process of law under both the
fourteenth amendment to the United States constitution and article first,
§ 8, of the Connecticut constitution.
16
Brady has direct applicability in criminal prosecutions, governing claims
that the prosecution has suppressed material evidence that is favorable to
an accused. See, e.g., Small v. State, 143 Conn. App. 655, 663, 70 A.3d 180
(2013), cert. denied, 311 Conn. 908, 83 A.3d 1163 (2014); Davis v. Commis-
sioner of Correction, 140 Conn. App. 597, 606, 59 A.3d 403, cert. denied,
308 Conn. 920, 62 A.3d 1133 (2013).
17
Because we affirm the judgment of the court granting the respondent’s
motion for summary judgment on the petitioner’s petition for a new trial, we
reject the petitioner’s novel claim that, under the exercise of our supervisory
authority, he is entitled to a vacatur of the judgments previously rendered
against him. See footnote 2 of this opinion.