Solon v. Slater

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LINDA YOFFE SOLON v. JOSEPH M.
SLATER ET AL.
(SC 20597)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Ecker and Keller, Js.
Argued September 8, 2022—officially released January 3, 2023*
Procedural History
Action to recover damages for, inter alia, tortious
interference with contractual relations, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk, where the court, Povodator,
J., granted the defendants’ motions for summary judg-
ment with respect to certain counts of the complaint;
thereafter, the plaintiff withdrew the remaining counts
of the complaint, and the court, Povodator, J., rendered
judgment for the defendants, from which the plaintiff
appealed to the Appellate Court, Alvord, Elgo and Alex-
ander, Js., which affirmed the trial court’s judgment,
and the plaintiff, on the granting of certification,
appealed to this court. Reversed in part; further pro-
ceedings.
Eric D. Grayson, for the appellant (plaintiff).
William N. Wright, with whom, on the brief, was
John W. Cannavino, for the appellees (defendants).
Opinion
ECKER, J. This appeal requires us to decide the scope
of the preclusive effect, in a subsequent tort action in
the Superior Court, of an unappealed Probate Court
decree admitting a will to probate. The plaintiff, Linda
Yoffe Solon, filed the present lawsuit against the defen-
dants, Joseph M. Slater and Joshua Solon, alleging that
they tortiously interfered with her contractual relations
and right of inheritance by exercising undue influence
over her husband, Michael Solon (decedent), with
respect to two different legal instruments, a proposed
amendment to an antenuptial agreement and a testa-
mentary will. The trial court rendered summary judg-
ment in favor of the defendants, concluding in pertinent
part that both of the plaintiff’s tortious interference
claims were barred by the doctrine of collateral estop-
pel because the Probate Court previously had admitted
the decedent’s will to probate after rejecting the plain-
tiff’s claim that the decedent executed the will as a
result of the defendants’ undue influence. The Appellate
Court affirmed the judgment of the trial court. See Solon
v. Slater, 204 Conn. App. 647, 665, 253 A.3d 503 (2021).
The issue before us is whether both of the plaintiff’s
tortious interference claims in her civil tort action are
barred by either the doctrine of collateral estoppel,
as the courts below concluded, or the doctrine of res
judicata, which the defendants have raised as an alter-
native ground for affirmance. We conclude that neither
preclusion doctrine bars the plaintiff from litigating her
tortious interference with contractual relations claim,
which relates to the proposed amended antenuptial
agreement, because the Probate Court did not actually
or necessarily determine whether the defendants tor-
tiously interfered with that contract and the plaintiff
lacked an opportunity to litigate her claim in the Probate
Court. We arrive at a different conclusion with respect
to the plaintiff’s tortious interference with her right of
inheritance claim because the Probate Court actually
and necessarily determined that the defendants had not
tortiously interfered with the execution, alteration, or
revocation of the will admitted to probate, and the plain-
tiff therefore is collaterally estopped from relitigating
that claim. Accordingly, we reverse the judgment of the
Appellate Court in part and remand the case for further
proceedings on the plaintiff’s tortious interference with
contractual relations claim.
I
FACTS AND PROCEDURAL HISTORY
The Appellate Court opinion sets forth the following
facts and procedural history. ‘‘The plaintiff and the
decedent first met in December, 2010. In May, 2013,
they were married. At the time of the marriage, the
decedent had two adult children from a previous mar-
riage: a son, Joshua Solon, and a daughter, Carly Solon.
Slater was both a longtime friend and attorney of the
decedent.
‘‘On or about May 22, 2013, just prior to getting mar-
ried, the plaintiff and the decedent executed an ante-
nuptial agreement. The antenuptial agreement pro-
vided, inter alia, for the plaintiff to have a life estate
interest in real property located at 49 Alexandra Drive in
Stamford (Stamford home). The antenuptial agreement
further provided that the decedent’s estate would be
responsible for paying the mortgage, property taxes,
utilities, and associated expenses and repairs at the
Stamford home.
‘‘In November, 2013, approximately six months after
the plaintiff’s marriage to the decedent, the decedent
was diagnosed with pancreatic cancer. The prognosis
was that he had less than one year left to live. The
decedent elected a surgical course of treatment. Prior
to surgery, he met with Slater concerning the prepara-
tion of a last will and testament. On November 8, 2013
the decedent signed a last will and testament prepared
by Slater (2013 will).
‘‘After undergoing the surgery, the decedent met with
an estate planning attorney, Howard S. Tuthill III, con-
cerning his estate plan. On February 6, 2014, Tuthill
prepared a second will for the decedent (2014 will).
‘‘Shortly after the decedent’s early November diagno-
sis, the plaintiff and the decedent discussed amending
their antenuptial agreement. The plaintiff alleged that
the decedent provided her with a handwritten note
dated November 9, 2013 (November note), the day after
the decedent executed the 2013 will, which purportedly
memorialized the intended changes to the antenuptial
agreement. The November note indicated: ‘I want to
leave the house to [the plaintiff]—[the plaintiff] will get
the 200k plus annuity, [the plaintiff] will get [the] Etrade
acct, [the plaintiff] will get approx. 90–110k dollars.’
‘‘Thereafter, in early 2014, the decedent engaged
Attorney Edward Nusbaum to represent him in negotia-
tions pertaining to modifying the antenuptial agree-
ment. The plaintiff was represented in the negotiations
by Attorney Arnold Rutkin. Although Nusbaum and Rut-
kin discussed the proposal set forth in the November
note, the negotiations ultimately failed, and the plaintiff
and the decedent never amended their antenuptial
agreement.
‘‘On March 13, 2014, the decedent left the Stamford
home [he shared with the plaintiff] to reside at the home
of his former wife, Lori Solon, on Long Island (Long
Island home). The plaintiff characterized his departure
as ‘essentially a kidnapping’ by the defendants, such
that the decedent was ‘forcibly removed’ from the Stam-
ford home, in the ‘complete control and custody’ of
the defendants, and ‘subject to undue influence and
manipulation’ by them. The defendants produced evi-
dence to the effect that the decedent’s departure from
the Stamford home was volitional.
‘‘From March 13, 2014, until the date of his death,
the decedent resided at the Long Island home. During
that time, he communicated with the plaintiff on a few
occasions by [email], text message, and telephone;
these communications were primarily initiated by the
plaintiff. The decedent died on April 19, 2014.
‘‘On or about June 4, 2014, Slater submitted an appli-
cation to the Probate Court for the admission of the
2014 will. The plaintiff [objected] to its admission,
claiming that the decedent executed the 2014 will under
the defendants’ undue influence and also that the dece-
dent had lacked the testamentary capacity to execute
the documents.
‘‘On October 6, 2014, while the Probate Court pro-
ceedings were . . . pending, the plaintiff commenced
an action in the Superior Court against the defendants,
both individually and in Slater’s fiduciary capacity as
administrator of the decedent’s estate (first action).
Solon v. Slater, Superior Court, judicial district of Stam-
ford-Norwalk, Docket No. CV-XX-XXXXXXX-S (May 12,
2015). Her complaint set forth the following five counts,
all sounding in tort: (1) tortious interference with con-
tractual relations; (2) tortious interference with [the]
right of inheritance; (3) intentional infliction of emo-
tional distress; (4) negligent infliction of emotional dis-
tress; and (5) negligence. Specifically, the plaintiff
alleged that the defendants, by way of manipulation,
prevented the decedent from amending the antenuptial
agreement or revising his will for the benefit of the
plaintiff. As relief, the plaintiff sought the total value
of the assets of the decedent’s estate that were listed
in the November note: $850,000, representing the value
of the title to the Stamford home; $240,500, representing
the proceeds of an annuity held by the decedent;
$100,000 from an E-Trade account held by the decedent;
[and] $100,000 from the decedent’s bank account
. . . .’’ (Footnotes omitted.) Solon v. Slater, supra, 204
Conn. App. 649–52. Additionally, the plaintiff sought
‘‘$5,000,000, representing the decedent’s 50 percent
ownership interest in his family’s business, B&F Elec-
tric Motors, Inc. . . .’’1 Id., 652.
‘‘The defendants moved to dismiss the first action on
the ground that the Probate Court had not yet ruled on
the admission of the 2014 will and, therefore, [that]
there was no justiciable controversy. By memorandum
of decision dated May 12, 2015, the court, Heller, J.,
dismissed the first action against the defendants for
lack of subject matter jurisdiction. The court explained
that the Solon . . . assets were subject to the jurisdic-
tion of the Probate Court: ‘All of the property that the
plaintiff argues would have passed to her [upon] the
decedent’s death, but for the defendants’ improper con-
duct, is presently subject to the jurisdiction of the Pro-
bate Court. . . . [S]hould the Probate Court admit the
. . . 2014 will to probate over the plaintiff’s objection,
finding that the decedent was not subject to the defen-
dants’ undue influence, the Probate Court’s order will
be a final judgment for res judicata purposes, if no
appeal is taken, and the plaintiff’s claims in this action
will be barred.’
‘‘On June 17, 2015, the Probate Court, Fox, J., held an
evidentiary hearing concerning the plaintiff’s objections
to the admission of the 2014 will. On August 20, 2015,
the Probate Court issued a decree admitting the 2014
will to probate over the plaintiff’s objections (Probate
Court decree). The Probate Court first determined that
‘the will was properly executed in accordance with
[General Statutes] § 45a-251 and that there [was] insuffi-
cient evidence to show that the decedent did not have
the testamentary capacity to make the subject will at
the time of its execution in accordance with [General
Statutes] § 45a-250.’ . . . Next, the Probate Court
determined that ‘there [was] insufficient evidence to
show that the disposition of the decedent’s estate in
his [2014 will] was a result of undue influence.’ The
plaintiff did not appeal [from] the Probate Court decree.
‘‘In making its determination, the Probate Court con-
sidered the following evidence with respect to the dece-
dent’s estate planning. The decedent’s 2014 will pours
his residuary estate into a revocable trust, naming his
children, Joshua Solon and Carly Solon, as the sole
beneficiaries. The decedent provided for the plaintiff
under the antenuptial agreement. The plaintiff testified
that she knew that the decedent was reviewing estate
planning documents with his attorney in the period
from January 14 through February 6, 2014. She was
working during the day and, therefore, did not accom-
pany him to these meetings. However, Joshua Solon
and Slater took the decedent to four or five meetings
that he had with Tuthill.
‘‘The Probate Court considered the following evi-
dence with respect to the decedent’s marriage to the
plaintiff and their antenuptial agreement. The decedent
and the plaintiff first met in December, 2010, and then
married on May 23, 2013. The day before the marriage,
the decedent and the plaintiff entered into an antenup-
tial agreement. The plaintiff testified that the decedent
repeatedly told her he would ‘ ‘‘take care of her for
life,’’ ’ and that he intended to change the antenuptial
agreement to give her, inter alia, the Stamford home
as well as two generous bank accounts. To support her
allegations, the plaintiff provided the Probate Court
with the November note. The plaintiff testified that, in
January and February, 2014, she and the decedent had
consulted with [family law] attorneys to amend their
antenuptial agreement to conform to the terms of the
November note. This amended agreement, however,
never was finalized.
‘‘The Probate Court considered the following evi-
dence with respect to the decedent’s diagnosis, treat-
ment, and overall health. The plaintiff testified that, in
November, 2013, six months after her marriage to the
decedent, the decedent received the diagnosis of late
stage pancreatic cancer. The decedent had palliative
surgery, after which he was prescribed strong pain alle-
viating drugs. The plaintiff contended that the decedent
was very sick and heavily medicated.
‘‘The Probate Court considered the following evi-
dence with respect to the plaintiff’s and the defendants’
care of and visitation with the decedent. Prior to March
13, 2014, the plaintiff testified that Joshua Solon often
took care of the decedent during the day when the
plaintiff was at work. Slater also frequently visited the
decedent at the Stamford home. The plaintiff further
testified that, on March 13, 2014, when she came home
from work, the decedent was gone. Joshua Solon and
Carly Solon had taken him from the Stamford home.
The plaintiff stated that she was not allowed to see the
decedent or to ‘ ‘‘say goodbye.’’ ’ Joshua Solon and
Carly Solon did not inform her of the decedent’s death
on April 19, 2014.
‘‘On September 2, 2015, the plaintiff commenced the
present action. [Her subsequently] revised complaint
(operative complaint) . . . set forth the same five tort
counts contained in the first action: (1) tortious interfer-
ence with contractual relations; (2) tortious interfer-
ence with [the] right of inheritance; (3) intentional
infliction of emotional distress; (4) negligent infliction
of emotional distress; and (5) negligence.2 Specifically,
with respect to counts one and two of the plaintiff’s
operative complaint, the plaintiff alleged that the dece-
dent ‘was preparing either by [amendment to the ante-
nuptial agreement] or by will, to leave [the plaintiff the
Solon assets].’ The plaintiff maintained that the dece-
dent’s 2014 will was executed ‘under the influence and
control’ of the defendants. The plaintiff further main-
tained that the reason that the antenuptial agreement
was not modified was because, on March 13, 2014, the
defendants, ‘acting individually and in concert, forcibly
removed and essentially kidnapped [the decedent] from
the marital home . . . so [that the decedent] would be
in their complete control and custody and under their
influence and manipulation.’ The plaintiff asserted that
the defendants, ‘[b]y using their undue influence and
manipulation prior to the time [that] they took [the
decedent] from [the Stamford] home and thereafter,
while he was kept at an undisclosed location . . . and
incommunicado from [the plaintiff], the defendants
. . . interfered with [her] contractual relations and
expectancies, in that the terms of the [amendments to
the antenuptial agreement], which had been agreed to,
were never reduced to writing.’
‘‘On April 20, 2017, the defendants [each] moved for
summary judgment on the grounds that the plaintiff’s
claims were barred by the doctrines of res judicata
and collateral estoppel because those claims had been
‘previously adjudicated and decided by the Probate
Court.’ ’’ (Footnote added; footnotes omitted.) Solon v.
Slater, supra, 204 Conn. App. 652–56. The trial court,
Povodator, J., first rejected the defendants’ res judicata
defense on the ground that ‘‘[t]he Probate Court is a
court of limited jurisdiction, such that it [did] not have
authority to entertain any of the [tort] claims being
asserted in this lawsuit (or the [first action]).’’ Turning
to the defendants’ collateral estoppel defense, the court
determined that the plaintiff’s intentional infliction of
emotional distress, negligent infliction of emotional dis-
tress, and negligence claims were not barred because
the Probate Court’s determination regarding the law-
fulness of the defendants’ conduct was not dispositive
of those claims. The court observed that, ‘‘[although]
an underlying act may be lawful, the manner in which
it was accomplished could, at least possibly, constitute
an intentional infliction of emotional distress.’’
The trial court arrived at a contrary conclusion, how-
ever, with respect to whether collateral estoppel barred
the plaintiff’s tortious interference with contractual
relations and tortious interference with the right of
inheritance claims. The court reasoned that these
claims ‘‘are dependent on a level of impropriety that is
foreclosed by the Probate Court order’’ in light of the
Probate Court’s finding that the defendants had not
engaged in any ‘‘[wrongful] conduct directed to the
[antenuptial] agreement and [the] operative will.’’ The
Probate Court’s determination that the 2014 will ‘‘was
not the product of undue influence or lack of testamen-
tary capacity,’’ combined with ‘‘the interrelationship
between the [antenuptial] agreement and the [2014] will
with respect to the ultimate disposition of the dece-
dent’s estate,’’ led the court to conclude that ‘‘the [plain-
tiff’s] claim of some wrongfulness in [the] bringing
about [of] that result [could not] survive the determina-
tion by the Probate Court that the will properly reflected
the final wishes of the decedent.’’ Accordingly, the court
granted the defendants’ motions for summary judgment
with respect to the first two counts of the plaintiff’s
operative complaint.
The plaintiff appealed from the judgment of the trial
court to the Appellate Court,3 contending that her tor-
tious interference with contractual relations and the
right of inheritance claims were not barred by the doc-
trine of collateral estoppel. Solon v. Slater, supra, 204
Conn. App. 659. The Appellate Court disagreed on the
ground that the plaintiff’s tortious interference claims
presented the same issues and relied ‘‘on the same
factual predicate that she [had] offered in support of
her undue influence claim in [the] Probate Court.’’ Id.,
663. Because the Probate Court necessarily and actually
determined that the defendants’ allegedly tortious con-
duct with respect to the 2014 will ‘‘did not rise to a
level of impropriety by the defendants, of whatever
character, such as to affect the disposition of the dece-
dent’s estate’’; (internal quotation marks omitted) id.,
662; the Appellate Court held that the plaintiff was col-
laterally estopped from raising her tortious interference
claims in the present action. Id., 665. In light of that
conclusion, the Appellate Court did not address the
defendants’ argument that res judicata provided an
alternative ground for affirmance. Id., 657 n.11.
In this certified appeal,4 the plaintiff contends that
her tortious interference claims are not barred by the
doctrine of collateral estoppel because the Probate
Court lacked jurisdiction to adjudicate her tort claims
and did not actually or necessarily determine whether
the defendants tortiously interfered with the proposed
amendment to the antenuptial agreement. The plaintiff
further contends that the doctrine of collateral estoppel
does not apply because the burden of proof and legal
standards governing the undue influence claim adjudi-
cated in the Probate Court are not identical to those
applicable to the tortious interference claims in the
present case.
The defendants respond that the factual predicate
of both the plaintiff’s tortious interference claims is
identical to the factual predicate of the undue influence
claim that was raised and decided in the Probate Court.
The defendants contend that the Probate Court had
subject matter jurisdiction over the antenuptial agree-
ment as part of its power to adjudicate the title to the
Solon assets pursuant to General Statutes § 45a-98 (a)
(3)5 and argue that the Probate Court necessarily deter-
mined that the plaintiff was not entitled to the Solon
assets because she failed to prove that the defendants
had manipulated the decedent or had engaged in any
wrongful conduct. Alternatively, the defendants argue
that the plaintiff’s tortious interference claims are
barred by the doctrine of res judicata because the Pro-
bate Court had jurisdiction to decide whether the plain-
tiff was entitled to the Solon assets and the tortious
interference claims are identical to the undue influence
claim adjudicated in the Probate Court.
II
PRECLUSIVE EFFECT OF PROBATE
COURT DECREE
Probate Court decrees are final judgments for pur-
poses of collateral estoppel and res judicata. See, e.g.,
Corcoran v. Dept. of Social Services, 271 Conn. 679,
689, 859 A.2d 533 (2004); Gaynor v. Payne, 261 Conn.
585, 596, 804 A.2d 170 (2002); Heussner v. Day, Berry &
Howard, LLP, 94 Conn. App. 569, 576, 893 A.2d 486,
cert. denied, 278 Conn. 912, 899 A.2d 38 (2006); see
also General Statutes § 45a-24.6 Whether the plaintiff’s
claims for tortious interference with contractual rela-
tions and the right of inheritance are barred by the
doctrines of collateral estoppel or res judicata presents
a question of law, over which our review is plenary.
See, e.g., Powell v. Infinity Ins. Co., 282 Conn. 594,
601, 922 A.2d 1073 (2007).
The doctrines of collateral estoppel and res judicata,
also known as issue preclusion and claim preclusion,
respectively, ‘‘have been described as related ideas on
a continuum.’’ (Internal quotation marks omitted.) Dow-
ling v. Finley Associates, Inc., 248 Conn. 364, 373, 727
A.2d 1245 (1999). Both doctrines share common pur-
poses, namely, to ‘‘protect the finality of judicial deter-
minations, [to] conserve the time of the court, and [to]
prevent wasteful litigation . . . .’’ (Citation omitted;
internal quotation marks omitted.) Id. Despite their
‘‘conceptual closeness’’; Connecticut Natural Gas
Corp. v. Miller, 239 Conn. 313, 324 n.8, 684 A.2d 1173(1996); the two doctrines ‘‘are regarded as distinct.’’
Weiss v. Weiss, 297 Conn. 446, 459, 998 A.2d 766 (2010).
The doctrine of collateral estoppel prevents ‘‘a party
from relitigating issues and facts [that have been] actu-
ally and necessarily determined in an earlier proceeding
between the same parties or those in privity with them
[on] a different claim’’; (emphasis added; internal quo-
tation marks omitted) Rocco v. Garrison, 268 Conn.
541, 555, 848 A.2d 352 (2004); whereas the doctrine of
res judicata prevents a party from relitigating the same
claim following a final judgment on the merits, ‘‘regard-
less of what additional or different evidence or legal
theories might be advanced in support of it.’’ (Internal
quotation marks omitted.) Wheeler v. Beachcroft, LLC,
320 Conn. 146, 157–58, 129 A.3d 677 (2016).
A
Collateral Estoppel
We first address whether the plaintiff’s tortious inter-
ference with contractual relations and the right of inher-
itance claims are barred by the doctrine of collateral
estoppel. ‘‘For an issue to be subject to collateral estop-
pel, it must have been fully and fairly litigated in the
first action. It also must have been actually decided
and the decision must have been necessary to the judg-
ment. . . .
‘‘An issue is actually litigated if it is properly raised
in the pleadings or otherwise, submitted for determina-
tion, and in fact determined. . . . An issue is necessar-
ily determined if, in the absence of a determination of
the issue, the judgment could not have been validly
rendered. . . . If an issue has been determined, but the
judgment is not dependent [on] the determination of the
issue, the parties may relitigate the issue in a subsequent
action. . . . Before collateral estoppel applies [how-
ever] there must be an identity of issues between the
prior and subsequent proceedings. To invoke collateral
estoppel the issues sought to be litigated in the new
proceeding must be identical to those considered in
the prior proceeding. . . . Further, an overlap in issues
does not necessitate a finding of identity of issues for
the purposes of collateral estoppel.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
MacDermid, Inc. v. Leonetti, 328 Conn. 726, 739–40,
183 A.3d 611 (2018).
To determine whether the issues in the present case
are identical to the issues decided by the Probate Court,
we compare the facts underlying each of the plaintiff’s
tortious interference claims with the facts actually and
necessarily found by the Probate Court in its determina-
tion of the will contest. See Aetna Casualty & Surety
Co. v. Jones, 220 Conn. 285, 297, 596 A.2d 414 (1991)
(‘‘[t]o establish whether collateral estoppel applies, the
court must determine what facts were necessarily deter-
mined in the first trial, and must then assess whether
the [party] is attempting to relitigate those facts in the
second proceeding’’ (internal quotation marks omit-
ted)); see also Gladysz v. Planning & Zoning Commis-
sion, 256 Conn. 249, 261, 773 A.2d 300 (2001) (‘‘state-
ments by a court regarding a nonessential issue are
treated as merely dicta’’). The defendants, as the parties
who sought summary judgment on the basis of collat-
eral estoppel, bore ‘‘the burden of showing that the issue
[the] relitigation [of which they sought] to foreclose
was actually decided in the first proceeding.’’ (Internal
quotation marks omitted.) Dowling v. Finley Associ-
ates, Inc., supra, 248 Conn. 377.
1
The Plaintiff’s Tortious Interference with Contractual
Relations Claim Is Not Barred by the Doctrine of
Collateral Estoppel
In the operative complaint, the plaintiff alleged that
the defendants tortiously interfered with the amend-
ment of the antenuptial agreement, and thereby pre-
vented her from obtaining ownership of the Solon
assets, ‘‘[b]y using their undue influence and manipula-
tion prior to the time they took [the decedent] from his
marital home and, thereafter, while he was kept at an
undisclosed location—and incommunicado from [the
plaintiff]’’—to prevent him from reducing the terms of
the agreement to writing.7 (Emphasis omitted.) See, e.g.,
White v. Mazda Motor of America, Inc., 313 Conn. 610,
621, 99 A.3d 1079 (2014) (‘‘[t]he pleadings determine
which facts are relevant and frame the issues for sum-
mary judgment proceedings or for trial’’). To prevail
on her tortious interference with contractual relations
claim, the plaintiff must prove ‘‘(1) the existence of a
contractual or beneficial relationship, (2) the defen-
dants’ knowledge of that relationship, (3) the defen-
dants’ intent to interfere with the relationship, (4) the
interference was tortious, and (5) a loss suffered by
the plaintiff that was caused by the defendants’ tortious
conduct.’’ (Internal quotation marks omitted.) Appleton
v. Board of Education, 254 Conn. 205, 212–13, 757 A.2d
1059 (2000). An interference is tortious if it involves
‘‘fraud, misrepresentation, intimidation or molestation
. . . [or if] the defendant[s] acted maliciously. . . .
The burden is on the plaintiff to plead and prove at
least some improper motive or improper means . . .
on the part of the defendants.’’ (Citations omitted; inter-
nal quotation marks omitted.) Solomon v. Aberman,
196 Conn. 359, 365, 493 A.2d 193 (1985); see American
Diamond Exchange, Inc. v. Alpert, 101 Conn. App. 83,
90–94, 920 A.2d 357 (defendant was liable for tortious
interference with business expectancy because she
acted with improper motive and employed improper
means to divert customers away from plaintiff), cert.
denied, 284 Conn. 901, 931 A.2d 261 (2007). ‘‘Stated
simply, to substantiate a claim of tortious interference
. . . there must be evidence that the interference
resulted from the defendant’s commission of a tort.’’
(Internal quotation marks omitted.) Biro v. Hirsch, 62
Conn. App. 11, 21, 771 A.2d 129, cert. denied, 256 Conn.
908, 772 A.2d 601 (2001).
The parties dispute whether the Probate Court actu-
ally and necessarily resolved the issue of the defen-
dants’ allegedly tortious interference with the amend-
ment of the antenuptial agreement when it found that
‘‘the disposition of the decedent’s estate in his [2014
will] was [not] a result of undue influence.’’8 The Appel-
late Court agreed with the defendants that it did. See
Solon v. Slater, supra, 204 Conn. App. 665. We conclude
otherwise. The flaw in the Appellate Court’s reasoning
is that the plaintiff’s claim of tortious interference with
the amendment of the antenuptial agreement is predi-
cated on different (albeit partly overlapping) conduct
relating to a different legal instrument, not the 2014
will. The sole issue in the Probate Court was whether
to admit the decedent’s 2014 will to probate. Notably,
the plaintiff did not challenge the validity of the preex-
isting antenuptial agreement or ask the Probate Court
to determine the right or title to any of the Solon assets
pursuant to § 45a-98 (a) (3).9 Instead, she objected to
the admission of the decedent’s 2014 will to probate,
claiming that (1) the decedent lacked the testamentary
capacity to execute the will, and (2) the will was the
product of the defendants’ undue influence. Following
an evidentiary hearing, the Probate Court rejected both
of these objections, finding that there was ‘‘insufficient
evidence to show that the decedent did not have the
testamentary capacity to make the [2014] will at the
time of its execution’’ or that ‘‘the disposition of the
decedent’s estate in his [2014 will] was a result of undue
influence.’’
The Probate Court made no factual findings regarding
the defendants’ conduct pertaining to the proposed
amendment of the antenuptial agreement. Thus, the
Probate Court did not decide whether the defendants
interfered with the consummation of an amended agree-
ment and, if so, whether the interference was accom-
plished by improper means, such as manipulation or
undue influence. Because the Probate Court did not
actually decide whether the defendants tortiously inter-
fered with the execution of an amended antenuptial
agreement, we conclude that the plaintiff’s tortious
interference with contractual relations claim is not
barred by the doctrine of collateral estoppel. See Weiz-
mann Institute of Science v. Neschis, 229 F. Supp. 2d
234, 249 (S.D.N.Y. 2002) (collateral estoppel effect of
prior probate action did ‘‘not preclude the [plaintiffs]
from raising issues and challenging those documents,
if any, that were not part of the probate proceeding’’);
Arroyo-Graulau v. Merrill Lynch Pierce, Fenner &
Smith, Inc., 135 App. Div. 3d 1, 4, 19 N.Y.S.3d 221 (2015)
(plaintiff’s claims regarding delivery of estate account
assets were not barred by collateral estoppel effect of
prior Probate Court judgment because sole issue in
prior action ‘‘was whether the 2008 will should be admit-
ted to probate’’); Watch Tower Bible & Tract Society
of Pennsylvania v. Fifth Third Bank, Docket No. 96403,
2011 WL 4600795, *4 (Ohio App. October 6, 2011) (plain-
tiff’s claims for negligence, conversion, breach of con-
tract, and tortious interference with expectancy were
not barred by doctrine of collateral estoppel, even
though ‘‘the crux of the [P]robate [C]ourt case’’ was
similar to plaintiff’s tort claims, because plaintiff’s claim
that ‘‘the intended bequest . . . was not consummated
due to the [defendant’s] negligence’’ was different from
issues litigated in prior Probate Court action).
In arriving at this conclusion, we recognize that there
is some overlap between the facts underlying the plain-
tiff’s undue influence claim in the Probate Court and her
tortious interference with contractual relations claim
in the present case, because both claims are predicated
on the defendants’ allegedly wrongful conduct during
the same general time period regarding the Solon assets.
An overlap in issues is not enough to trigger application
of the doctrine of collateral estoppel; the doctrine
becomes operative only if the issue decided in the prior
proceeding and the issue presented in the subsequent
proceeding are identical. See Corcoran v. Dept. of
Social Services, supra, 271 Conn. 690 (administrative
action regarding plaintiff’s entitlement to Medicaid ben-
efits was not collaterally estopped by Probate Court
decree finding that trust assets were held in special
needs trust ‘‘because the issue decided by the Probate
Court, namely, that the trust was not available to the
plaintiff’s creditors, is not identical to the issue before
the hearing officer, namely, whether the trust consti-
tuted an asset available to the plaintiff’’ (emphasis in
original)); Peterson v. iCare Management, LLC, 203
Conn. App. 777, 793, 250 A.3d 720 (2021) (plaintiffs’
nuisance claims were not barred by collateral estoppel
effect of prior land use action involving that defendants’
use of property did not violate zoning regulations
because, in prior action, ‘‘the court . . . was not asked
to resolve, and did not resolve, the [issue] of whether
the defendants’ operation at [the property] constituted
a nuisance for which the plaintiffs . . . would be enti-
tled to damages’’); Wiacek Farms, LLC v. Shelton, 132
Conn. App. 163, 171, 30 A.3d 27 (2011) (plaintiff’s tor-
tious interference with business expectancy and anti-
trust claims were not barred by collateral estoppel
effect of prior action for injunctive relief involving
defendant’s allegedly unlawful taking of property
because ‘‘[t]he issue of whether the defendant caused
the plaintiff monetary damages by improperly interfer-
ing with its business expectations [was] sufficiently
different [from] the issue presented for determination
in the injunction proceeding’’), cert. denied, 303 Conn.
918, 34 A.3d 394 (2012). Although it might be inferred
that, if the defendants did not exercise undue influence
with respect to the 2014 will, they also did not exercise
undue influence with respect to the amendment of the
antenuptial agreement, ‘‘the doctrine of collateral estop-
pel [cannot be predicated] on a mere inference.’’ Corco-
ran v. Dept. of Social Services, supra, 695. As we
explained in Corcoran, ‘‘the addition of an inferential
step is sufficient to negate the required identity of the
issues.’’ Id.To illustrate the point, it takes little imagination to
conceive of a plausible hypothetical situation in which
the defendants might have accomplished their allegedly
wrongful objective by engaging in tortious conduct with
respect to the proposed amendment to the antenuptial
agreement while engaging in no improprieties with
respect to the 2014 will. The defendant Joshua Solon
was a residuary beneficiary under the 2014 will, and,
as such, the value of his inheritance depended on what
remained in the estate after the terms of the antenuptial
agreement had been effectuated. Thus, even without
any wrongdoing by the defendants in connection with
the 2014 will, wrongful interference with the amend-
ment to the antenuptial agreement alone would have
resulted in the Solon assets passing to the trust benefici-
aries as part of the residuary estate. Under this hypo-
thetical scenario, the factual allegations that truly mat-
ter, those in support of the plaintiff’s claim, are those
relating to the allegedly tortious interference with the
proposed amended antenuptial agreement—facts that
have not yet been actually and necessarily adjudicated.
Moreover, the summary judgment record reflects that
the execution of the 2014 will and the negotiation of
the proposed amendment to the antenuptial agreement
were not inextricably intertwined but, instead, were
treated as separate and distinct legal transactions. Dur-
ing the amendment negotiations, the decedent was rep-
resented by a family law attorney, Nusbaum, whereas
an estate planning attorney, Tutthill, prepared the 2014
will on behalf of the decedent. Tuthill’s deposition testi-
mony concerning the decedent’s mental capacity and
exercise of ‘‘free will’’ in connection with the execution
of the 2014 will was admitted into evidence at the Pro-
bate Court hearing, but it does not appear that the
parties proffered any evidence from Nusbaum or the
plaintiff’s family law attorney regarding the negotiation
of the proposed amendment to the antenuptial agree-
ment in the Probate Court proceeding.10 Indeed, there
is no indication that the parties produced any evidence
concerning the proposed amendment to the antenuptial
agreement at all, other than the plaintiff’s testimony in
the Probate Court action that the decedent ‘‘intended
to change the [antenuptial agreement] to give her the
[Stamford home] as well as two generous bank
accounts,’’ and her production of the handwritten
November note, which purportedly memorialized the
intended changes to the antenuptial agreement. The
defendants contend that these brief references make it
‘‘clear that the issue of the . . . negotiations [relating
to the amendment of the antenuptial agreement] were
before the Probate Court . . . .’’ We find no merit in
this claim.
As we previously explained, the sole legal issue
before the Probate Court was whether to admit the
decedent’s 2014 will to probate. To fulfill her burden
of proof on her undue influence claim in the Probate
Court; see footnote 11 of this opinion; the plaintiff testi-
fied that the decedent wanted to leave her the Solon
assets after his death by means of an amended antenup-
tial agreement or by will. Given that the proposed
amended antenuptial agreement never was consum-
mated, the plaintiff alleged that, but for the undue influ-
ence exercised by the defendants, the decedent would
have bequeathed her the Solon assets in his will.
Although the Probate Court actually and necessarily
found that the 2014 will ‘‘express[ed] [the decedent’s]
actual testamentary desires’’; (emphasis added) Bass-
ford v. Bassford, 180 Conn. App. 331, 355, 183 A.3d 680(2018); it made no factual findings, and was not required
to make any such findings, regarding the decedent’s
contractual desires, i.e., whether the decedent intended
to leave the plaintiff the Solon assets via an amended
antenuptial agreement and, if so, whether the defen-
dants tortiously interfered with the consummation of
the proposed amended agreement.11 Accordingly, the
plaintiff’s tortious interference with contractual rela-
tions claim is not barred by the doctrine of collateral
estoppel.
2
The Plaintiff’s Tortious Interference with the
Right of Inheritance Claim Is Barred by
the Doctrine of Collateral Estoppel
We next address whether the plaintiff’s tortious inter-
ference with the right of inheritance claim is barred by
the doctrine of collateral estoppel. As a preliminary
matter, we note that the appellate courts of this state
have not yet addressed whether tortious interference
with the right of inheritance is a cognizable cause of
action. See, e.g., Maguire v. Kane, Docket No. FST-CV-
XX-XXXXXXX-S, 2021 WL 2302619, *2 (Conn. Super. May
18, 2021) (‘‘no appellate court has yet addressed
whether there is a cause of action for tortious interfer-
ence with an expected inheritance’’); see also Wild v.
Cocivera, Docket No. HHD-CV-XX-XXXXXXX-S, 2016 WL
3912348, *5 (Conn. Super. June 16, 2016) (citing cases
and noting that, although ‘‘a minority of judges of the
Superior Court has declined to recognize such a cause
of action,’’ most Superior Court judges have ‘‘recog-
nized the viability of this cause of action’’). Assuming,
without deciding, that this state would recognize the
cause of action, the essential elements of tortious inter-
ference with the right of inheritance are (1) an expected
inheritance, (2) the defendant’s knowledge of the
expected inheritance, (3) the defendant’s intent to inter-
fere with the expected inheritance, (4) the interference
was tortious, and (5) actual loss suffered by the plaintiff
as a result of the defendant’s tortious conduct.12 See,
e.g., Reilley v. Albanese, Docket No. AAN-CV-15-
6018220-S, 2015 WL 9897691, *2–3 (Conn. Super. Decem-
ber 14, 2015); Hart v. Hart, Superior Court, judicial
district of Windham, Docket No. CV-XX-XXXXXXX-S (May
11, 2015) (60 Conn. L. Rptr. 399, 406); DePasquale v.
Hennessey, Superior Court, judicial district of Hartford,
Docket No. CV-XX-XXXXXXX-S (August 27, 2010) (50
Conn. L. Rptr. 605, 607); see also 4 Restatement (Sec-
ond), Torts, § 774B, p. 58 (1979) (‘‘[o]ne who by fraud,
duress or other tortious means intentionally prevents
another from receiving from a third person an inheri-
tance or gift that he would otherwise have received is
subject to liability to the other for loss of the inheritance
or gift’’).
In the present case, the plaintiff’s tortious interfer-
ence with the right of inheritance claim is premised on
the defendants’ knowledge of the plaintiff’s expected
inheritance of the Solon assets and their allegedly tor-
tious interference with that expected inheritance by
‘‘interference with the execution, alteration, or revoca-
tion of a will by [the decedent] . . . .’’13 The Probate
Court determined, however, that there was no tortious
conduct by the defendants with respect to the plaintiff’s
inheritance because the defendants had not exercised
undue influence to overbear the decedent’s free agency
regarding the disposition of his property in the 2014
will. See footnote 8 of this opinion. By admitting the
2014 will to probate, over the plaintiff’s objection, the
Probate Court actually and necessarily decided that the
2014 will ‘‘express[ed] [the decedent’s] actual testamen-
tary desires.’’ Bassford v. Bassford, supra, 180 Conn.
App. 355; see Hills v. Hart, 88 Conn. 394, 401, 91 A.
257 (1914) (‘‘If the will represented her wishes, and was
such a disposition of her estate as she desired, and she
was then of sound and disposing mind, it is her will
and not another’s. She has not done something against
her will and contrary to her wishes. Her discretion and
judgment have not been controlled, and her free agency
has not been overcome.’’). Because the Probate Court
determined that the defendants’ conduct regarding the
testamentary disposition of the Solon assets was not
tortious, we conclude that the plaintiff’s tortious inter-
ference with the right of inheritance claim is barred
by the doctrine of collateral estoppel. See Kramer v.
Freedman, 272 So. 2d 195, 199 (Fla. App.) (malicious
interference with inheritance claim was barred by col-
lateral estoppel effect of prior probate proceeding
regarding revocation of decedent’s will), cert. dis-
charged, 295 So. 2d 97 (Fla. 1973); Mancuso v. Lahman,
Docket No. 1-17-0185, 2018 WL 4201754, *1 (Ill. App.
August 30, 2018) (‘‘[the] [t]rial court’s [rendering] of
summary judgment on [the tortious interference with
inheritance] claims was properly based on [the collat-
eral estoppel] doctrine, as [the] court in [the] prior
will contest had already conclusively ruled that [the]
defendant had not unduly influenced [the] drafting of
[the] estate plan that disinherited [the] plaintiff’’); Youn-
gblut v. Youngblut, 945 N.W.2d 25, 36–37 (Iowa 2020)
(‘‘To prevail either on an undue influence claim or a
[tortious interference] claim whe[n] the plaintiff is chal-
lenging conduct leading to a new will, the plaintiff must
prove an outsider overcame the testator’s independent
will. . . . If the will reflects the true wishes of the
testator, then no claim should lie, either for undue influ-
ence or tortious interference.’’ (Citations omitted.)).
We reject the plaintiff’s contention that her tortious
interference with the right of inheritance claim is not
barred by the doctrine of collateral estoppel on the
ground that the Probate Court lacked jurisdiction to
adjudicate her tort claim.14 Unlike the doctrine of res
judicata; see part II B of this opinion; the doctrine of
collateral estoppel does not depend on the plaintiff’s
ability to assert an identical claim in the prior proceed-
ing—it depends, instead, on the actual resolution of an
identical issue in the prior proceeding following a full
and fair opportunity for litigation.15 It is not uncommon
that ‘‘issue preclusion will be asserted in an action over
which the court rendering the prior judgment would not
have had subject matter jurisdiction.’’ 1 Restatement
(Second), Judgments, § 28, comment (d), p. 279 (1982).
In such circumstances, ‘‘there is no reason why preclu-
sion should not apply’’ if ‘‘the procedures followed in the
two courts are comparable in quality and extensiveness,
and the first court was fully competent to render a
determination of the issue on which preclusion is
sought.’’ Id.; see, e.g., Connecticut Natural Gas Corp.
v. Miller, supra, 239 Conn. 324 (collateral estoppel does
not bar relitigation of issue ‘‘if the nature of the hearing
carries procedural limitations that would not be present
at a later hearing’’ (internal quotation marks omitted)).
The plaintiff does not allege that the procedures in
the Probate Court were not comparable in quality and
extensiveness to the procedures in the Superior Court.
Nor does the plaintiff challenge the Probate Court’s
competence to render a final determination on the issue
of whether the 2014 will expressed the decedent’s actual
testamentary desires. We therefore conclude that the
plaintiff is collaterally estopped from litigating her tor-
tious interference with the right of inheritance claim.
B
Res Judicata
Lastly, we address whether the judgment of the
Appellate Court may be affirmed on the alternative
ground that the plaintiff’s tortious interference with
contractual relations claim is barred by the doctrine of
res judicata. As our discussion in part II A 1 indicates,
the plaintiff did not raise this claim in the prior Probate
Court action. Nonetheless, ‘‘[r]es judicata bars the reliti-
gation of claims actually made in the prior action as
well as any claims that might have been made there.’’
Wheeler v. Beachcroft, LLC, supra, 320 Conn. 157. In
order ‘‘for res judicata to apply, four elements must be
met: (1) the [prior] judgment must have been rendered
on the merits by a court of competent jurisdiction; (2)
the parties to the prior and subsequent actions must
be the same or in privity; (3) there must have been an
adequate opportunity [in the prior action] to litigate the
[omitted claim] fully; and (4) the same underlying claim
must be at issue.’’ Id., 156–57.
The parties’ dispute centers on the third and fourth
elements of the res judicata test, namely, whether the
plaintiff had an adequate opportunity to litigate her
tortious interference with contractual relations claim
in the prior Probate Court action, despite having failed
to do so, and whether her tortious interference with
contractual relations claim is the ‘‘same’’ for res judicata
purposes as the undue influence claim adjudicated in
the Probate Court.16 We conclude that the plaintiff
lacked an adequate opportunity to litigate her tortious
interference with contractual relations claim in the Pro-
bate Court, and, therefore, we do not address whether
tortious interference with contractual relations and
undue influence are the ‘‘same’’ claim for res judicata
purposes under the transactional test. See id., 159 (‘‘To
determine whether claims are the ‘same’ for res judicata
purposes, this court has adopted the transactional test.
. . . Under the transactional test, res judicata extin-
guishes ‘all rights of the plaintiff to remedies against
the defendant with respect to all or any part of the
transaction, or series of connected transactions, out of
which the action arose.’ ’’).
To determine whether the plaintiff had an adequate
opportunity to litigate her tortious interference with
contractual relations claim, ‘‘we . . . apply the test set
forth in the Restatement (Second) of Judgments, § 25,
comment (e). Under this test, ‘[w]hen the plaintiff brings
an action on [a] claim in a court, either state or federal,
in which there is no jurisdictional obstacle to his
advancing both theories or grounds, but he presents
only one of them, and judgment is [rendered] with
respect to it, he may not maintain a second action in
which he tenders the other theory or ground. If, how-
ever, the court in the first action would clearly not have
had jurisdiction to entertain the omitted theory or
ground (or, having jurisdiction, would clearly have
declined to exercise it as a matter of discretion), then
a second action in a competent court presenting the
omitted theory or ground should [not be] precluded.’ ’’
(Emphasis altered.) Connecticut National Bank v. Ryt-
man, 241 Conn. 24, 44, 694 A.2d 1246 (1997). Thus,
the doctrine of res judicata ‘‘generally does not apply
[when] [t]he plaintiff was unable to rely on a certain
theory of the case or to seek a certain remedy because
of the limitations on the subject matter jurisdiction of
the courts . . . .’’ (Internal quotation marks omitted.)
Marrese v. American Academy of Orthopaedic Sur-
geons, 470 U.S. 373, 382, 105 S. Ct. 1327, 84 L. Ed. 2d 274(1985); see also 1 Restatement (Second), Judgments,
supra, § 26 (1) (c), pp. 233–34 (recognizing exception
to res judicata if ‘‘[t]he plaintiff was unable to rely on
a certain theory of the case or to seek a certain remedy
or form of relief in the first action because of the limita-
tions on the subject matter jurisdiction of the courts
. . . and the plaintiff desires in the second action to
rely on that theory or to seek that remedy or form of
relief’’).
The fundamental flaw in the defendants’ invocation
of the res judicata doctrine is that the Probate Court
did not have jurisdiction to adjudicate the plaintiff’s
claim that the defendants had tortiously interfered with
her contractual relations with respect to the proposed
amendment to the antenuptial contract. ‘‘The Probate
Court is a court of limited jurisdiction prescribed by
statute, and it may exercise only such powers as are
necessary to the performance of its duties.’’ (Internal
quotation marks omitted.) Bender v. Bender, 292 Conn.
696, 707, 975 A.2d 636 (2009). Although § 45a-98 vests
the Probate Court with jurisdiction to ‘‘determine title
or rights’’ to property ‘‘that constitutes, or may consti-
tute, all or part of . . . any decedent’s estate’’; General
Statutes § 45a-98 (a) (3); it does not vest the Probate
Court with jurisdiction to adjudicate common-law tort
claims or to award compensatory damages against indi-
vidual defendants as a remedy for tortious conduct. See
Bender v. Bender, supra, 716 (‘‘[§] 45a-98 . . . does not
provide jurisdiction over a breach of contract action,
whether to obtain damages or specific performance,
simply because the property belongs to an estate’’);
Gaynor v. Payne, supra, 261 Conn. 599 (Probate Court
lacked jurisdiction to adjudicate common-law claims or
to award compensatory damages); Palmer v. Hartford
National Bank & Trust Co., 160 Conn. 415, 430, 279
A.2d 726 (1971) (‘‘[a] court of probate is unable to award
damages’’); Geremia v. Geremia, 159 Conn. App. 751,
770, 125 A.3d 549 (2015) (‘‘[n]either § 45a-98 nor any
other provision of the General Statutes vests the Pro-
bate Court with jurisdiction, exclusive or otherwise,
over those actions sounding in tort’’); see also footnote
5 of this opinion.
Our analysis in Gaynor v. Payne, supra, 261 Conn.
585, is instructive. In Gaynor, the plaintiff, Paul A.
Gaynor, in his capacity as administrator of the estate
of his mother, filed an action against the defendant, S.
Giles Payne, the former executor of the mother’s estate,
alleging negligence, breach of fiduciary duty, and
breach of contract with respect to Payne’s administra-
tion of the estate. Id., 586–88. Payne claimed in relevant
part that Gaynor’s action was barred by the doctrine
of res judicata ‘‘because the beneficiaries of the estate
failed to object to the accounting proffered by [Payne]
upon his resignation as executor,’’ and the Probate
Court had approved Gaynor’s final accounting of the
estate. Id., 594; see id., 587–88. We concluded that Gaynor’s
breach of fiduciary duty claim was barred by the doc-
trine of res judicata because ‘‘[t]he Probate Court had
jurisdiction to adjudicate [that claim] in passing [on]
the validity of the accounting rendered by [Payne],’’
and, therefore, this claim ‘‘could have been brought in
the Probate Court.’’ Id., 598. With respect to Gaynor’s
negligence and breach of contract claims, by contrast,
we concluded that ‘‘[t]hese claims [were] brought
against [Payne] personally, rather than in his capacity
as executor of the decedent’s estate. The Probate Court
did not have jurisdiction to adjudicate or award dam-
ages for these common-law claims, which must be
brought in a court of general jurisdiction. It therefore
would have been futile for the beneficiaries to have
raised these claims in the Probate Court . . . .’’ Id.,
599. Because Gaynor had ‘‘not been afforded the oppor-
tunity to litigate’’ his common-law negligence and
breach of contract claims in the prior Probate Court
action, we held that ‘‘[t]he doctrine of res judicata [did]
not bar [Gaynor]’’ from litigating those claims in the
Superior Court. Id., 600–601.
Likewise, in the present case, the Probate Court
clearly did not have subject matter jurisdiction to adju-
dicate the plaintiff’s tortious interference with contrac-
tual relations claim or to award the plaintiff compensa-
tory damages. As such, the plaintiff lacked an adequate
opportunity to litigate this claim fully in the Probate
Court. See, e.g., New England Estates, LLC v. Branford,
294 Conn. 817, 848, 988 A.2d 229 (2010) (claim for
wrongful taking of property in violation of 42 U.S.C.
§ 1983 was not barred by res judicata effect of prior
action regarding valuation of property because, ‘‘[i]n
the valuation appeal, the owners could not have raised
their claim that the town violated the public use require-
ment of the takings clause’’); Connecticut National
Bank v. Rytman, supra, 241 Conn. 49–52 (state law
claims were not barred by res judicata effect of prior
federal action under Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. § 1961 et seq., because
federal court clearly would have declined to exercise
pendent jurisdiction over state law claims); In re Pro-
bate Appeal of Cadle Co., 152 Conn. App. 427, 444–45,
100 A.3d 30 (2014) (plaintiff’s claims were not barred
by res judicata effect of prior probate action because
they ‘‘were not litigated in the prior probate appeal . . .
[and] could [not] have been litigated,’’ and, therefore,
‘‘[t]he plaintiff did not have an adequate opportunity to
address the . . . claims fully and fairly in the prior
probate appeal’’); Daoust v. McWilliams, 49 Conn. App.
715, 728, 716 A.2d 922 (1998) (state law claims were
not barred by res judicata effect of prior federal action
under 42 U.S.C. § 1983 insofar as ‘‘the plaintiff did not
have an adequate opportunity to litigate [those] com-
mon-law tort claims because the federal court declined
to exercise supplemental jurisdiction over them’’). We
therefore conclude that the plaintiff’s tortious interfer-
ence with contractual relations claim is not barred by
the doctrine of res judicata.
The judgment of the Appellate Court is reversed in
part and the case is remanded to that court with direc-
tion to remand the case to the trial court for further
proceedings on the plaintiff’s tortious interference with
contractual relations claim; the judgment of the Appel-
late Court is affirmed in all other respects.
In this opinion the other justices concurred.
* January 3, 2023, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
Hereinafter, we refer to the Stamford home, the annuity, the E-Trade
account, and the 50 percent ownership interest in B&F Electric Motors,
Inc., collectively as the Solon assets.
2
The only distinction between the complaint in the present action and
the complaint filed in the first action is that, in the first action, the plaintiff
sued Slater both individually and in his fiduciary capacity as administrator
of the decedent’s estate, whereas, in the present action, Slater is named in
his individual capacity only.
3
Prior to filing her appeal, the plaintiff withdrew her intentional infliction
of emotional distress, negligent infliction of emotional distress and negli-
gence claims. See Solon v. Slater, supra, 204 Conn. App. 657 n.10.
4
We granted the plaintiff’s petition for certification to appeal, limited to
the following issue: ‘‘Did the Appellate Court properly uphold the trial court’s
determination that the plaintiff was collaterally estopped from litigating tort
claims against her deceased husband’s lawyer and her stepson for intentional
interference with the amendment of a prenuptial agreement and interference
with an inheritance expectancy as a result of a Probate Court adjudication
overruling the plaintiff’s objection to the admission of her deceased hus-
band’s will in probate.’’ Solon v. Slater, 337 Conn. 908, 253 A.3d 43 (2021).
5
General Statutes § 45a-98 (a) provides in relevant part: ‘‘Probate Courts
in their respective districts shall have the power to . . . (3) except as
provided in section 45a-98a or as limited by an applicable statute of limita-
tions, determine title or rights of possession and use in and to any real,
tangible or intangible property that constitutes, or may constitute, all or
part of any trust, any decedent’s estate, or any estate under control of a
guardian or conservator, including the rights and obligations of any benefi-
ciary of the trust or estate and including the rights and obligations of any
joint tenant with respect to survivorship property . . . .’’
Although § 45a-98 has been amended since the events underlying the
present case; see, e.g., Public Acts 2019, No. 19-137, § 110; Public Acts 2018,
No. 18-45, § 16; those amendments have no bearing on the merits of this
appeal. In the interest of simplicity, we refer to the current revision of
the statute.
Pursuant to General Statutes § 45a-98a (a), ‘‘[t]he Probate Court shall
have jurisdiction under subdivision (3) . . . of subsection (a) of section
45a-98 only if (1) the matter in dispute is not pending in another court of
competent jurisdiction and (2) the Probate Court does not decline jurisdic-
tion. Before the initial hearing on the merits of a matter in dispute in which
jurisdiction is based on subdivision (3) . . . of subsection (a) of section
45a-98, the Probate Court may, on its own motion, decline to take jurisdiction
of the matter in dispute. Before the initial hearing on the merits of such a
matter, any interested person may file an affidavit that such person is entitled
and intends under section 52-215 to claim a trial of the matter by jury. In
that case, the Probate Court shall allow the person filing the affidavit a
period of sixty days within which to bring an appropriate civil action in the
Superior Court to resolve the matter in dispute. If such an action is brought
in the Superior Court, the matter, after determination by the Superior Court,
shall be returned to the Probate Court for completion of the Probate Court
proceedings.’’
6
General Statutes § 45a-24 provides in relevant part: ‘‘All orders, judg-
ments and decrees of courts of probate, rendered after notice and from
which no appeal is taken, shall be conclusive and shall be entitled to full
faith, credit and validity and shall not be subject to collateral attack, except
for fraud.’’
7
To the extent the plaintiff alleged that the defendants’ tortious conduct
prevented her from inheriting the Solon assets by will, such a claim is
cognizable, if at all, via a cause of action for tortious interference with the
right of inheritance. We address the plaintiff’s tortious interference with the
right of inheritance claim in part II A 2 of this opinion.
8
‘‘Undue influence is the exercise of sufficient control over the person,
the validity of whose act is brought in question, to destroy his free agency
and constrain him to do what he would not have done if such control had
not been exercised. . . . It is stated generally that there are four elements
of undue influence: (1) a person who is subject to influence; (2) an opportu-
nity to exert undue influence; (3) a disposition to exert undue influence;
and (4) a result indicating undue influence.’’ (Citation omitted; internal
quotation marks omitted.) Dinan v. Marchand, 279 Conn. 558, 560 n.1,
903 A.2d 201 (2006). Undue influence ‘‘is a species of fraud’’; Lockwood v.
Lockwood, 80 Conn. 513, 521, 69 A. 8 (1908); or a type of duress; Gengaro
v. New Haven, 118 Conn. App. 642, 652, 984 A.2d 1133 (2009); or coercion
that ‘‘sound[s] in tort.’’ D’Agostino v. D’Addio, 6 Conn. App. 187, 188, 504
A.2d 528 (1986), cert. denied, 199 Conn. 805, 508 A.2d 32 (1986).
9
The Probate Court pleadings and transcript (if any exist) are not a part
of the record on appeal. Nor were they submitted into evidence in the trial
court. Our review is therefore limited to the Probate Court decree and the
evidence submitted in connection with the defendants’ motions for summary
judgment. See, e.g., Rainbow Housing Corp. v. Cromwell, 340 Conn. 501,
523 n.12, 264 A.3d 532 (2021) (declining to consider evidence that was
not presented to trial court on motion for summary judgment); U.S. Bank
National Assn. v. Eichten, 184 Conn. App. 727, 756, 196 A.3d 328 (2018)
(appellate courts ‘‘do not consider evidence not presented to the trial court’’).
10
In support of their motions for summary judgment, the defendants
submitted an affidavit from Nusbaum, which is dated April 17, 2017, two
years after the Probate Court decree.
11
The Probate Court’s factual finding that ‘‘[t]he decedent provided for [the
plaintiff] under the [antenuptial agreement]’’ does not alter our conclusion
because the validity of the antenuptial agreement was not in dispute, and
it was uncontested that the decedent provided for the plaintiff in that agree-
ment. Whether the decedent intended to leave the plaintiff with the Solon
assets via an amendment to the antenuptial agreement was not an issue
before the Probate Court.
Our conclusion in this regard is bolstered by a contextual clue to the
purpose of the Probate Court’s reference to the antenuptial agreement. As
the Probate Court recognized in its decree, the burden of proof in an undue
influence claim differs depending on the claimant’s relationship to the dece-
dent and whether the claimant is ‘‘the natural [object] of the [decedent’s]
bounty . . . .’’ Berkowitz v. Berkowitz, 147 Conn. 474, 477, 162 A.2d 709(1960). ‘‘Ordinarily, the burden of proof on the issue of undue influence
rests on the one alleging it,’’ but, in Berkowitz, we recognized ‘‘an exception
to this principle when it appears that a stranger, holding toward the testator
a relationship of trust and confidence, is a principal beneficiary under the
will and that the natural objects of the testator’s bounty are excluded.’’ Id.,476–77. The Probate Court held that the exception delineated in Berkowitz
was inapplicable to the plaintiff’s claim of undue influence regarding the 2014
will, reasoning that the plaintiff had not been excluded from the decedent’s
bounty because the decedent had provided for her in the antenuptial agree-
ment. The Probate Court further found that the principal beneficiaries of
the decedent’s estate were not strangers but, rather, the revocable trust,
the beneficiaries of which were the decedent’s children. Thus, the Probate
Court was not resolving a dispute between the parties regarding the antenup-
tial agreement but simply making the factual findings necessary to allocate
the burden of proof in connection with the plaintiff’s undue influence claim.
12
There is a split of authority among our sister state courts whether
to recognize a cause of action for tortious interference with the right of
inheritance. See, e.g., Nelsen v. Nelsen, 508 P.3d 301, 331 (Idaho 2022) (‘‘[t]he
tort of [intentional interference with an expected inheritance] has become
widely recognized; twenty-five of the forty-two states that have considered
it have adopted it’’); see also J. Goldberg & R. Sitkoff, ‘‘Torts and Estates:
Remedying Wrongful Interference with Inheritance,’’ 65 Stan. L. Rev. 335,
361–63 (2013). Among those states that recognize the tort, most have held
‘‘that the plaintiff, in order to pursue the cause of action, must show that
there are no adequate alternative remedies to the tort action’’ available in
the Probate Court. Jackson v. Kelly, 345 Ark. 151, 158, 44 S.W.3d 328 (2001);
see also Restatement (Third), Torts, Liability for Economic Harm § 19 (2),
p. 161 (2020) (claim for tortious interference with inheritance ‘‘is not avail-
able to a plaintiff who had the right to seek a remedy for the same claim
in a probate court’’). In the present appeal, we need not decide whether a
cause of action for tortious interference with the right of inheritance is
available to a plaintiff who failed to seek a remedy for the same claim in
the Probate Court, and, therefore, we express no opinion on this issue.
13
In the operative complaint, the plaintiff also alleged that the defendants
tortiously interfered with her right of inheritance ‘‘by inducing an inter vivos
transfer, in that they had [the decedent] execute a will [through which] a
trust [was] set up for the purpose of removing all of his assets from his
estate, such that there is nothing or no will to elect against.’’ The undisputed
evidence in the summary judgment record reflects that the Solon assets
were not transferred during the decedent’s lifetime but, instead, were part
of the decedent’s residuary estate, which was distributed to the beneficiaries
of the decedent’s revocable trust pursuant to the terms of the 2014 will.
Because there is no evidence of an inter vivos transfer of the Solon assets,
we need not decide whether a probate court’s judgment admitting a will to
probate collaterally estops a claim of tortious interference with right of
inheritance on the basis of an alleged improper depletion of estate assets
during a decedent’s lifetime.
14
The plaintiff also argues that her tortious interference with the right of
inheritance claim is not barred because the burden of proof governing
her undue influence claim in the Probate Court was clear and convincing
evidence, whereas the burden of proof governing her tortious interference
with the right of inheritance claim is a fair preponderance of the evidence.
See Birnie v. Electric Boat Corp., 288 Conn. 392, 406, 953 A.2d 28 (2008)
(‘‘[t]he application of the collateral estoppel doctrine may not be proper
when the burden of proof . . . differ[s] between the first and subsequent
actions’’); 1 Restatement (Second), Judgments, supra, § 28 (4), p. 273 (party
is not precluded from relitigating issue if ‘‘[t]he party against whom preclu-
sion is sought had a significantly heavier burden of persuasion with respect to
the issue in the initial action than in the subsequent action’’). The defendants
respond that the preponderance standard governs both the plaintiff’s undue
influence and tortious interference claims.
It is not clear from the Probate Court decree which burden of proof was
applied to the undue influence claim. Even if we assume that the Probate
Court applied the clear and convincing standard, the plaintiff’s briefing in
this appeal leaves us unable to determine the proper burden of proof govern-
ing her claim for tortious interference with the right of inheritance. Although
some courts apply the preponderance of the evidence standard to such a
claim, other courts apply a higher burden of proof. Compare Peralta v.
Peralta, 139 N.M. 231, 234, 131 P.3d 81 (App. 2005) (The court recognized
‘‘the different burdens of proof required to contest a will and to establish
tortious interference with inheritance . . . . A claim that a will was pro-
cured through undue influence must be shown by clear and convincing
evidence . . . [whereas] a claim of tortious interference with inheritance
need only be established by a preponderance of the evidence.’’ (Citation
omitted.)), with Wickert v. Burggraf, 214 Wis. 2d 426, 429, 570 N.W.2d 889(App. 1997) (burden of proof of ‘‘clear, satisfactory and convincing evi-
dence,’’ which generally was applicable ‘‘in [will contest] actions,’’ also
was ‘‘applicable to [intentional interference with expected inheritance] tort
actions’’ (internal quotation marks omitted)). The plaintiff has not cited any
case law or provided any support for her bare assertion that the burden of
proof governing a claim of tortious interference with the right of inheritance
is a preponderance of the evidence. Given the plaintiff’s failure to address
this complex legal issue in her brief, we decline to address it. See, e.g.,
Connecticut Coalition Against Millstone v. Connecticut Siting Council,
286 Conn. 57, 87, 942 A.2d 345 (2008) (‘‘We are not obligated to consider
issues that are not adequately briefed. . . . Whe[n] an issue is merely men-
tioned, but not briefed beyond a bare assertion of the claim, it is deemed
to have been waived. . . . In addition, mere conclusory assertions regarding
a claim, with no mention of relevant authority and minimal or no citations
from the record, will not suffice.’’ (Citations omitted; internal quotation
marks omitted.)). As a result, we cannot say that the doctrine of collateral
estoppel is inapplicable due to the difference between the applicable legal
standards.
15
As the plaintiff points out, tortious interference with the right of inheri-
tance is a different type of claim than the undue influence objection adjudi-
cated in the Probate Court action in the sense that ‘‘[t]he object of a will
contest proceeding is not to secure a personal judgment against an individual
defendant but . . . to set aside a will.’’ (Internal quotation marks omitted.)
The fact that the claims are not identical, however, does not mean that the
doctrine of collateral estoppel is inapplicable. By definition, the doctrine of
‘‘collateral estoppel precludes a party from relitigating issues and facts
actually and necessarily determined in an earlier proceeding between the
same parties . . . [in connection with] a different claim.’’ (Emphasis
added; internal quotation marks omitted.) Weiss v. Weiss, supra, 297 Conn.
472 n.20. The plaintiff’s contention that the doctrine of collateral estoppel
is inapplicable to ‘‘ ‘distinct’ ’’ or ‘‘different’’ claims ignores this fundamen-
tal principle.
16
In our view, there is no serious doubt that the first element of the
doctrine of res judicata is satisfied because the Probate Court was a court
of competent jurisdiction to render a final judgment on the merits of the
plaintiff’s undue influence and lack of testamentary capacity objections to
the admission of the 2014 will to probate. Neither party addresses the second
element of the res judicata test in their appellate briefs, but we note that,
pursuant to the Probate Court Rules of Procedure, a ‘‘party’’ to a Probate
Court action includes ‘‘a person having a legal or financial interest in a
proceeding before the court, a fiduciary under section 4.2 and any other
person whom the court determines to be a party. The term has the same
meaning as interested party.’’ Probate Court Rules § 1.1 (27); see Probate
Court Rules § 4.2 (a) (‘‘[a]n executor or administrator of a decedent’s estate
is a party: (1) in the estate proceeding in which the executor or administrator
was appointed; and (2) in any other probate proceeding in which the estate
has an interest’’). In the Probate Court proceeding, Solon had a financial
interest in the decedent’s residuary estate, and Slater was the proposed
executor of the decedent’s estate under the terms of the 2014 will. In the
present action, however, suit was brought against Slater in his individual
capacity, not his fiduciary capacity. Nonetheless, we assume, without decid-
ing, that the defendants were parties to the prior Probate Court action and
that the second element of the res judicata test has been satisfied under
these circumstances.