Rozbicki v. Gisselbrecht

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ZBIGNIEW S. ROZBICKI v. EUGENE
GISSELBRECHT ET AL.
(AC 36267)
Gruendel, Lavine and Mullins, Js.
Argued December 8, 2014—officially released February 10, 2015
(Appeal from Superior Court, judicial district of
Litchfield, Dooley, J.)
Zbigniew S. Rozbicki, self-represented, the appel-
lant (plaintiff).
J. Michael Sconyers, with whom, on the brief, was
Ruth Nadeau Dwyer, for the appellees (defendants).
Opinion
LAVINE, J. The self-represented plaintiff, Zbigniew
S. Rozbicki, an attorney, appeals from the judgment of
the trial court, following his appeal to that court from
the decree issued by the judge of probate for the district
of Torrington pursuant to General Statutes § 45a-186.
On appeal to this court, the plaintiff claims that the
trial court (1) lacked a factual basis on which to make its
findings, (2) failed to award him the full compensation
requested, and (3) failed to consider the parties’ stipula-
tion regarding the value of certain securities. We affirm
the judgment of the trial court.
The trial court made the following findings of fact.
Kathleen Gisselbrecht (decedent) was employed by the
plaintiff in his law office for many years and named
him the executor of her estate. Following her death in
2007, the decedent’s will was entered into probate, and
the plaintiff was appointed the executor of her estate.
The defendants are the decedent’s siblings and benefici-
aries under her will.1 During the administration of the
decedent’s estate, the plaintiff kept the defendants
informed of the proceedings. A disagreement between
the parties arose over the proceeds of a certain life
insurance policy. Under article III of the decedent’s will,
the proceeds of the insurance policy were to be used
to pay the outstanding balance of the mortgage on her
home and to repay a $20,000 loan from the plaintiff.
The contract of insurance, however, named her sister,
Ann Marie Rozsas, and her brother, Edward Gissel-
brecht, the sole beneficiaries of the insurance. The
insurance proceeds, therefore, were outside of the
estate. See Sigal v. Hartford National Bank & Trust
Co., 119 Conn. 570, 574, 177 A. 742 (1935).
In June, 2007, Rozsas and Gisselbrecht received the
insurance proceeds with the assistance of the plaintiff.
The plaintiff, subsequently, demanded that Rozsas and
Gisselbrecht return the insurance proceeds to the
estate. Rozsas and Gisselbrecht refused. Rozsas
explained by letter, dated September 5, 2007, that the
decedent had changed the designated beneficiaries of
her life insurance policy from her estate to Rozsas and
Gisselbrecht because her home had enough equity to
cover the outstanding balance of her mortgage and to
repay the loan from the plaintiff.
In February, 2008, the plaintiff filed an Application
for Approval of Payments with the Probate Court in
which he requested payment of legal fees for previously
having represented the decedent in a personal injury
action. The defendants, however, were unaware of this
debt, and the plaintiff failed to discuss this fee with
them prior to seeking reimbursement. Within weeks
of learning that the defendants planned to contest his
request for this legal fee, the plaintiff reasserted his
claim that the insurance policy proceeds must be
returned to the estate. As a result, in August, 2008, the
plaintiff filed a lawsuit (civil suit) against Rozsas and
Gisselbrecht for the return of the life insurance
proceeds.
On June 10, 2009, pursuant to General Statutes § 45a-
242, the Probate Court removed the plaintiff as executor
of the estate for cause. Upon the plaintiff’s removal as
executor, the Probate Court ordered the plaintiff to file
a final accounting. After the Probate Court rejected his
five prior accountings as incomplete or noncompliant,
the plaintiff filed the subject final accounting on March
26, 2010. In the plaintiff’s final accounting, he sought
certain fiduciary and attorney’s fees for services he
claimed to have rendered including: fiduciary fees in
the amount of $38,417.50; attorney’s fees in connection
with the civil suit in the amount of $22,605; and attor-
ney’s fees related to the sale of the decedent’s home
in the amount of $2860. The defendants objected to the
plaintiff’s final accounting and filed a petition for sur-
charges.
The Probate Court awarded a substantially lesser
amount of fiduciary and attorney’s fees than the plaintiff
had requested. Specifically, it awarded the plaintiff a
fiduciary fee of $5000 and attorney’s fees related to the
sale of the decedent’s home in the amount of $1020.
In addition, the Probate Court granted several of the
defendants’ requested surcharges including: $225 for
expenses related to the grievance complaint filed
against the plaintiff; $2000 for the attorney’s fees of
James Townsend, who represented the plaintiff when
the Probate Court removed him as executor; $623.75
for the attorney’s fees of William Barrante, who repre-
sented the plaintiff in the civil suit; $764.97 for the
transcript of the civil suit and; $3134.23 for the loss on
sale of Webster Financial stock securities. The plaintiff
appealed from the Probate Court’s decree to the trial
court.
We first address the trial court’s standard of review
on appeal from the Probate Court. ‘‘An appeal from a
Probate Court to the Superior Court is not an ordinary
civil action. . . . When entertaining an appeal from an
order or decree of a Probate Court, the Superior Court
takes the place of and sits as the court of probate.
. . . In ruling on a probate appeal, the Superior Court
exercises the powers, not of a constitutional court of
general or common law jurisdiction, but of a Probate
Court.’’ (Citations omitted; internal quotation marks
omitted.) State v. Gordon, 45 Conn. App. 490, 494, 696
A.2d 1034 cert. granted on other grounds, 243 Conn.
911, 701 A.2d 336 (1997) (appeal dismissed October
27, 1998).
Additionally, the trial court must conduct a trial de
novo. In re Probate Appeal of Cadle Co., 152 Conn. App.
427, 439, 100 A.3d 30 (2014). ‘‘An appeal from probate
does not vacate the decree appealed from nor does it
lift the entire cause from the probate court into the
superior court. On the contrary, it leaves the entire
matter as it was in the probate court, there to be contin-
ued with and completed according to law, presenting
in the meanwhile to the superior court for redetermi-
nation, after a retrial of the facts, the special and
limited issues embraced within the particular decree
appealed from.’’ (Emphasis in original; internal quota-
tion marks omitted.) Id., 440.
Over the course of three days, the trial court heard
the case de novo. In its corrected memorandum of deci-
sion,2 dated February 10, 2014, the court awarded a
lesser amount of fiduciary and attorney’s fees than the
plaintiff requested and sustained the majority of sur-
charges requested by the defendants. Specifically, the
court awarded fiduciary fees in the amount of $2000,
attorney’s fees in the amount of $1500 related to the
sale of the decedent’s home, and denied attorney’s fees
for the civil suit. Prior to the trial, the defendants
requested surcharges for the following: the loss of value
in Webster Financial stock securities; the trial court
filing fee for the civil suit; attorney’s fees for Townsend;
attorney’s fees for Barrante; the fee for the transcript
of the civil suit and; the Probate Court filing fees. During
the trial de novo, the defendants withdrew their request
for a surcharge for the loss in value of Webster Financial
stock securities. The court sustained surcharges for the
trial court filing fee for the civil suit, attorney’s fees for
Townsend, attorney’s fee for Barrante, and the fee for
the transcript of the civil suit, but denied a surcharge
for the Probate Court filing fees. The plaintiff then filed
this appeal. Additional facts will be set forth as nec-
essary.
I
The plaintiff first claims that there was insufficient
evidence to support the trial court’s findings of fact as
related to the civil suit.3 The plaintiff specifically takes
issue with the court’s finding that the civil suit was a
‘‘personal vendetta . . . which was the basis for a blan-
ket denial of the plaintiff’s fees and expenses, specifi-
cally the attorney’s fees incurred in the prosecution of
[the] civil suit.’’4 We disagree with the plaintiff.
‘‘The following standard of review is applicable to
sufficiency of the evidence claims. [W]e must determine
whether the facts set out in the memorandum of deci-
sion are supported by the evidence or whether, in light
of the evidence and the pleadings in the whole record,
those facts are clearly erroneous. . . . We also must
determine whether those facts correctly found are, as
a matter of law, sufficient to support the judgment.
. . . [W]e give great deference to the findings of the
trial court because of its function to weigh and interpret
the evidence before it and to pass upon the credibility
of witnesses . . . . We do not examine the record to
determine whether the trier of fact could have reached
a conclusion other than the one reached . . . . Rather,
on review by this court every reasonable presumption
is made in favor of the trial court’s ruling. . . . [E]vi-
dence is not insufficient . . . because it is conflicting
or inconsistent. [The trier of fact] is free to juxtapose
conflicting versions of events and determine which is
more credible.’’ (Citations omitted; internal quotation
marks omitted.) Masse v. Perez, 139 Conn. App. 794,
797–98, 58 A.2d 273 (2012), cert. denied, 308 Conn. 905,
61 A.3d 1098 (2013).
In the present case, the court found that ‘‘the evidence
produced at trial established conclusively that the plain-
tiff’s motivation in bringing and pursuing the litigation
against Ms. Rozsas and Mr. Gisselbrecht was to punish,
harass, annoy and to retaliate against the decedent’s
family members.’’ That finding is supported by the tim-
ing of the civil suit, which commenced immediately
after the defendants questioned the plaintiff’s request
for attorney’s fees for a personal injury case in which he
represented the decedent years ago. The court further
found that ‘‘the plaintiff was operating in contravention
to the wishes of the beneficiaries; was openly hostile
to their respective positions and was clearly pursuing
a personal vendetta against the decedent’s family
members.’’
The plaintiff argues that the court’s finding that the
civil suit was a ‘‘personal vendetta’’ was unjustified on
the facts, and he maintains that he commenced the civil
suit in good faith as the executor. The plaintiff testified
that it was his obligation to the estate to pursue such
litigation. The trial court did not credit this testimony
from the plaintiff and instead found that ‘‘his testimony
on this issue was simply not credible . . . [and]
[r]egardless [of] the conflicting positions as to the mer-
its of the [civil suit], its purpose was not to vindicate
rights the estate may have had . . . .’’ (Footnote omit-
ted.) The court concluded that ‘‘[t]he [civil suit] was a
personal vendetta for which the estate need not pay’’
and, therefore, denied attorney’s fees for the civil suit
and sustained the defendants’ request for a surcharge.
In support of these findings, the court reviewed all
of the evidence produced at trial before issuing its mem-
orandum of decision. Footnote 3 of the court’s memo-
randum of decision states in relevant part: ‘‘The court
does not attempt to include in this decision all of the
evidence relied upon in the court’s factual findings. The
court has considered all of the evidence admitted, and
the reference to any subset of the evidence presented
should not be construed as identifying the exclusive
basis for the court’s findings. Nor should the court’s
failure to identify or mention specific evidence give
rise to an inference that such evidence has not been
considered.’’ There was evidence in the record that the
plaintiff commenced the civil suit only after a rift
formed between the decedent’s family and him. The
plaintiff, alone, held the view that the insurance pro-
ceeds should pass through the estate and that a civil
suit was necessary to protect the estate’s interest. Yet
none of the decedent’s beneficiaries advanced this posi-
tion nor pursued any entitlement to the insurance pro-
ceeds. We conclude, on the basis of our review of the
record and the trial court’s memorandum of decision,
that viewed in the light most favorable to sustaining
the judgment, there was sufficient evidence to support
the trial court’s findings.
The plaintiff argues that ‘‘[t]he lack of clarity in the
court’s findings is compounded by its argumentative
advocacy and disregard for undisputed admissions and
undisputed contrary evidence . . . .’’ The plaintiff,
however, failed to seek an articulation of the evidentiary
basis for the court’s decision. See Practice Book § 66-
5. ‘‘Unless the contrary appears in the record, we will
presume that the trial court acted properly and consid-
ered applicable legal principles.’’ Bank of Boston Con-
necticut v. Avon Meadows Associates, 40 Conn. App.
536, 543, 671 A.2d 1310, cert. denied, 237 Conn. 905,
674 A.2d 1329 (1996). Therefore, we must look to the
record as a whole to determine whether the findings
were supported by the evidence. We conclude that the
court’s factual findings are not clearly erroneous in light
of the evidence in the whole record and the court’s
logical and thoughtful decision is not erroneous in law.
II
The plaintiff next claims that the court erred in deny-
ing him the full compensation and fees he requested
as the former executor of the decedent’s estate. We
disagree.
On appeal to the trial court, the plaintiff again
requested compensation and fees for the performance
of his duties as the former executor in his final account-
ing. Specifically, the plaintiff requested fiduciary fees,
attorney’s fees for the civil suit, and attorney’s fees
related to the sale of the decedent’s home.
‘‘It is well established that we review the trial court’s
decision to award attorney’s fees for abuse of discre-
tion. . . . Likewise, when we review a trial court’s
decision to award fees to an executor, administrator
or trustee, [t]he test is, has the court exercised a reason-
able discretion, or, in other words, is its exercise so
unreasonable as to constitute an abuse of discretion.’’
(Citation omitted; internal quotation marks omitted.)
McGrath v. Gallant, 143 Conn. App. 129, 135, 69 A.3d
968 (2013).
‘‘Under [Connecticut] law an executor, administrator,
trustee or guardian is entitled to a reasonable compen-
sation for his services, depending upon the circum-
stances of the case.’’ (Internal quotation marks
omitted.) Id., 134. In Hayward v. Plant, 98 Conn. 374,
384–85, 119 A. 341 (1923), our Supreme Court set forth
nine factors for the trial court to consider when ruling
on the reasonableness of fees awarded to an executor:
(1) the size of the estate; (2) the responsibilities
involved; (3) the character of the work required; (4)
the special problems and difficulties met in doing the
work; (5) the results achieved; (6) the knowledge, skill
and judgment required of and used by the executors;
(7) the manner and promptitude with which the estate
has been settled; (8) the time and service required; and
(9) any other circumstances which may appear in the
case and are relevant and material to this determination.
In its memorandum of decision, the trial court consid-
ered the nine factors enunciated in Hayward. It found
that the estate was neither large nor complicated and
the executor’s responsibilities were routine, which
resulted in the plaintiff being prepared to finalize the
estate only months after the will was submitted to pro-
bate. The court did not find that the plaintiff undertook
any special responsibilities or performed extraordinary
tasks for the estate. See In re Andrews’ Appeal from
Probate, 78 Conn. App. 441, 450, 826 A.2d 1267 (2003).
The tasks the plaintiff undertook were ministerial in
nature and did not require the specialized knowledge
of a law degree. The court found that the administration
of the estate was simple and routine, but that the plain-
tiff ‘‘engaged in conduct not to promptly settle the estate
but to prolong, delay and deplete the estate.’’ The evi-
dence before the court demonstrated that the plaintiff
achieved few results for the decedent’s estate, and the
trial court appropriately considered the plaintiff’s ‘‘fail-
ings’’ in regard to his role as the executor. Accordingly,
the trial court carefully considered the Hayward factors
in its analysis of the facts and its denial of the compensa-
tion and fees requested by the plaintiff.
The trial court also considered the reasonableness
of the amount requested for a fiduciary fee. The court
found improper and error-riddled accounting in the
plaintiff’s fee bill. The plaintiff requested a fiduciary fee
in excess of 10 percent of the gross value of the estate
and included items that were ‘‘ ‘double billed.’ ’’ In addi-
tion, the bill for fiduciary fees included dated entries
that occurred after the plaintiff had been removed as the
executor of the decedent’s estate. The court, ultimately,
awarded the plaintiff $2000 for his fiduciary services.
Having reviewed the record and the trial court’s memo-
randum of decision, we conclude that the court properly
applied the Hayward factors and did not abuse its dis-
cretion in awarding a fiduciary fee in a lesser amount
than that requested by the plaintiff.
The plaintiff, in addition to the fiduciary fees, sought
attorney’s fees he incurred in the civil suit and related
to the sale of the decedent’s home. The court, once
again, considered the Hayward factors in determining
whether or not attorney’s fees should be awarded. It
found that ‘‘the evidence produced at trial established
conclusively that the plaintiff’s motivation in bringing
and pursuing the [civil suit] was to punish, harass, annoy
and to retaliate against the decedent’s family members.’’
The court further concluded that the plaintiff’s testi-
mony was not credible and thus denied his request for
$22,605 in attorney’s fees for the civil suit.
The plaintiff’s second request for attorney’s fees was
submitted to the trial court by invoice in regard to the
sale of the decedent’s home. The court found that the
invoice included ‘‘[a] fair number of entries for time
spent on the real estate closing [that] appear to be
activities of a fiduciary, and not those that the real
estate lawyer would normally undertake.’’ Because the
court already had compensated the plaintiff for his
duties as the executor, the court appropriately awarded
$1500 in attorney’s fees related to the sale of the dece-
dent’s home. Our review of the record and the trial
court’s memorandum of decision discloses that the trial
court properly applied the Hayward factors and did
not abuse its discretion in denying attorney’s fees for the
civil suit and properly awarded attorney’s fees related to
the sale of the decedent’s home.
III
The plaintiff’s final claim is that the court failed to
consider the parties’ stipulation regarding a surcharge
related to the decreased value of certain Webster Finan-
cial stock securities. We disagree.
On appeal to the trial court, the defendants requested
a surcharge for $3134.23 for the loss in value of Webster
Financial stock securities. On the first day of trial, ‘‘the
defendants made a decision to withdraw their request
for a surcharge regarding the stock, thereby leaving
that portion of the plaintiff’s accounting unopposed by
the defendants.’’ After the defendants’ withdrawal on
the record, the plaintiff asked that the court incorporate
the withdrawn surcharge into its decision. The court
disagreed and stated, ‘‘Well . . . it’s a trial de novo
. . . they requested that surcharge, they are no longer
requesting that surcharge, and so as part of your
accounting, it will remain.’’ The plaintiff then answered,
‘‘Thank you.’’
In this appeal, the plaintiff argues that the trial court
erred by not incorporating the withdrawn surcharge for
the stock into its judgment. Specifically, the plaintiff
states that the parties had a stipulation concerning the
surcharge and ‘‘the [trial court’s] decision . . . ignores
the parties’ stipulation and the Probate Court order for
surcharge, which should have been reversed on appeal.’’
The record discloses, however, that the trial court
accepted the defendants’ withdrawal of the surcharge
and explained to the plaintiff that it did not need to
incorporate the withdrawn surcharge into its judgment.
Furthermore, the plaintiff has failed to show that he
has been harmed by the trial court’s exclusion of the
withdrawn surcharge in its judgment. We agree with
the trial court and, therefore, his claim fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendants originally included: Eugene M. Gisselbrecht, Edward
Gisselbrecht, Richard Albrecht, Sally Albrecht, Christopher Rozsas, Claudia
Urian, Robert Urian, and Christina Falzarano. We note that the trial court
subsequently granted the defendants’ motion to remove Eugene M. Gissel-
brecht as a party to this action.
2
The trial court’s February 10, 2014 memorandum of decision corrected
a typographical error in the amount of attorney’s fees sought by the plaintiff.
Accordingly, any references in this opinion to the trial court’s decision are
to the corrected memorandum of decision.
3
The plaintiff alleges within his first claim that ‘‘the trial court failed to
apply fundamental principles of law governing an executor’s duty.’’ The
plaintiff, in essence, attempts to reargue the merits of the civil suit. In its
memorandum of decision, the trial court emphasized that ‘‘[t]his appeal is
limited to the Probate Court’s determination on the final account and the
estate’s claimed surcharges,’’ and that any attempt by the plaintiff to relitigate
the civil suit would not be permitted. We agree that the civil suit was not
before the trial court and was not part of its judgment.
4
The plaintiff contests only the surcharge for the civil suit filing fee. He
does not contest any of the other surcharges sustained by the trial court
or the factual basis for the trial court’s award for an executor fee and
attorney’s fees for the sale of the decedent’s home. The plaintiff’s factual
finding claim rests on the trial court’s denial of attorney’s fees and cost for
the civil suit.