In re Probate Appeal of Kusmit

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IN RE PROBATE APPEAL OF CHRISTOPHER
KUSMIT ET AL., COADMINISTRATORS
(ESTATE OF CONNOR KUSMIT)
(AC 40671)
Elgo, Bright and Moll, Js.
Syllabus
The plaintiff coadministrators of the estate of the decedent appealed to
the trial court from the decision of the Probate Court allocating the
distribution of certain disputed attorney’s fees, totaling $66,666.67, to
the defendant attorney D and to M, an attorney, both of whom previously
represented the estate. The trial court rendered judgement, awarding D
$40,000 in attorney’s fees and ordering M, who was holding the disputed
attorney’s fees, to disburse that amount to D and return to the estate
$26,666. On appeal to this court, the plaintiffs claimed that certain of
the legal fees in dispute belonged to M, who was not a party to the
action. Specifically, they claimed that, although they were obligated to
pay the entirety of the disputed fees, they were aggrieved by the court’s
decision to allocate the disputed attorney’s fees to D instead of to M’s
law firm. Held that because the plaintiffs were not aggrieved by the
judgment of the Superior Court, they lacked standing to appeal from
that judgment, and, therefore, this court lacked subject matter jurisdic-
tion over the appeal; the plaintiffs did not claim to be statutorily
aggrieved by the judgment of the trial court, and they were not classically
aggrieved, as they failed to provide any legal authority to support their
proposition that administrators of an estate have a specific, personal
and legal interest in how a court allocates the distribution of attorney’s
fees when the estate claims no interest in any portion of those fees,
and although the court awarded a portion of the disputed fees to a party
not of the plaintiffs’ choosing, the plaintiffs failed to show how they
were specifically and injuriously affected by the trial court’s allocation
of the disputed fees.
Argued December 10, 2018—officially released March 5, 2019
Procedural History
Appeal from the order and decree of the Probate
Court for the district of East Haven-North Haven allo-
cating the distribution of certain attorney’s fees,
brought to the Superior Court in the judicial district
of New Haven and tried to the court, S. Richards, J.;
judgment in part for the defendant Douglas Mahoney,
from which the plaintiffs appealed to this court.
Appeal dismissed.
Ryan Veilleux, with whom, on the brief, was Edmund
Q. Collier, for the appellants (plaintiffs).
Damian K. Gunningsmith, with whom, on the brief,
was John R. Horvack, Jr., for the appellee (defendant
Douglas Mahoney).
Opinion
ELGO, J. In this dispute over attorney’s fees, the
plaintiffs, the coadministrators of the estate of Connor
Kusmit,1 appeal from the judgment of the Superior
Court rendered in favor of the defendant Douglas Maho-
ney.2 We conclude that the plaintiffs lack standing to
challenge that judgment. We, therefore, lack subject
matter jurisdiction and, accordingly, dismiss the plain-
tiffs’ appeal.
The record reveals the following undisputed facts.
On August 29, 2012, Connor Kusmit was riding a bicycle
when he was struck by a vehicle operated by Christina
Groumousas. He died as a result of the collision. On
September 20, 2012, the plaintiffs signed a retainer
agreement with the defendant’s law firm, which pro-
vided that the law firm was to represent them, on behalf
of the estate, in connection with their claim for damages
‘‘resulting from an event which occurred on or about
the 29th day of August, 2012 at Clintonville Rd. North
Haven.’’ The plaintiffs agreed to pay the defendant’s
law firm one third of the gross amount recovered. The
defendant subsequently settled a wrongful death claim
against Groumousas for $50,000, and the Probate Court
approved the settlement on July 16, 2013.
On March 28, 2014, Christopher Kusmit called the
defendant and requested a copy of the estate’s file. On
May 7, 2014, Attorney John Mills wrote to the defendant
to notify him that he had been retained by the plaintiffs
and would be pursuing an underinsured motorist claim
on behalf of the estate.3 On May 13, 2014, the defendant
filed a request in the Probate Court, seeking permission
to take his one-third contingency fee of $16,666 and
expenses from the $50,000 wrongful death claim settle-
ment, and informed the Probate Court that he no longer
represented the estate. On July 8, 2014, the Probate
Court ordered the disbursement of $31,499.08, the
amount remaining after the payment of the defendant’s
fees and expenses, to the plaintiffs from the wrongful
death claim settlement. On that same date, the Probate
Court also authorized Mills’ settlement of the underin-
sured motorist claim for $200,000. Thereafter, the defen-
dant notified the Probate Court that he was claiming a
portion of the $66,666.67 in attorney’s fees that Mills
sought from the $200,000 underinsured motorist claim
settlement (disputed fees).
After a hearing held on May 4, 2015, at which only
the defendant appeared, the Probate Court entered an
order allocating $40,000 of the disputed fees to the
defendant and the remaining $26,666.67 to Mills, from
which the plaintiffs subsequently appealed to the Supe-
rior Court. Following a trial de novo held on January
20, 2017, the Superior Court awarded the defendant
$40,000 in fees and ordered Mills, who was holding the
disputed funds, to disburse that amount to the defen-
dant and return to the estate $26,666.4 This appeal fol-
lowed. On December 4, 2018, this court, sua sponte,
ordered the following: ‘‘In light of the [plaintiffs’] posi-
tion that the legal fee in dispute belongs to the Mills
Law Firm, and given that the Mills Law Firm is not a
party to this case, counsel should be prepared to
address at argument how the [plaintiffs are] aggrieved
by the decision of the trial court and why the [plaintiffs
have] standing to seek relief on behalf of a nonparty.’’
On appeal, the plaintiffs raise a variety of claims.5
Before considering the merits of those claims, we must
address the threshold issue of standing. As our Supreme
Court has consistently stated: ‘‘A threshold inquiry of
this court upon every appeal presented to it is the ques-
tion of appellate jurisdiction. . . . Although not raised
by any party to this appeal, the issue of jurisdiction
may be examined by this court on its own motion.’’
(Citations omitted.) Kulmacz v. Kulmacz, 177 Conn.
410, 412, 418 A.2d 76 (1979). ‘‘The right to appeal is
purely statutory, and only an aggrieved party may
appeal. . . . General Statutes § 52-263, which governs
the subject matter jurisdiction of this court, provides
in relevant part that if either party is aggrieved by the
decision of the court or judge upon any question or
questions of law arising in the trial . . . he may appeal
to the court having jurisdiction from the final judgment
of the court or of such judge . . . . A determination
regarding . . . subject matter jurisdiction is a question
of law . . . [and, therefore] our review is plenary. . . .
‘‘It is axiomatic that aggrievement is a basic require-
ment of standing, just as standing is a fundamental
requirement of jurisdiction. . . . There are two general
types of aggrievement, namely, classical and statutory;
either type will establish standing, and each has its own
unique features. . . . Classical aggrievement requires
a two part showing. First, a party must demonstrate a
specific, personal and legal interest in the subject mat-
ter of the [controversy], as opposed to a general interest
that all members of the community share. . . . Second,
the party must also show that the [alleged conduct] has
specially and injuriously affected that specific personal
or legal interest. . . . Statutory aggrievement exists by
legislative fiat, not by judicial analysis of the particular
facts of the case. In other words, in cases of statutory
aggrievement, particular legislation grants standing to
those who claim injury to an interest protected by that
legislation. . . . Aggrievement is established if there is
a possibility, as distinguished from a certainty, that
some legally protected interest . . . has been
adversely affected.’’ (Citations omitted; emphasis omit-
ted; footnote omitted; internal quotation marks omit-
ted.) Trikona Advisers Ltd. v. Haida Investments Ltd.,
318 Conn. 476, 485–86, 122 A.3d 242 (2015).
In the present case, the plaintiffs do not claim to be
statutorily aggrieved. We, therefore, consider whether
they have been classically aggrieved by the judgment
of the Superior Court. See id., 486. The plaintiffs do not
dispute that they are obligated to pay attorney’s fees. At
oral argument before this court, the plaintiffs’ counsel
stated that the estate had expected to pay one third of
the $200,000 underinsured motorist claim settlement in
attorney’s fees, i.e., the entirety of the disputed fees.
He also confirmed that, in total, the estate is not paying
any more in attorney’s fees than it had originally con-
templated.6 Further, despite the fact that the Superior
Court ordered Mills to return a portion of the disputed
fees to the estate, at oral argument, the plaintiffs’ attor-
ney asserted that the estate is not entitled to any portion
of the disputed fees. Rather, as they indicate in their
brief, the plaintiffs take the position that ‘‘the legal fee[s]
in dispute belong to [the] Mills Law Firm, not to the
[e]state,’’ even though they acknowledge that the ‘‘Mills
Law Firm is not a party to this case.’’
While the plaintiffs also recognize that they are obli-
gated to pay the entirety of the disputed fees, they
nevertheless claim that they are aggrieved by the Supe-
rior Court’s decision to allocate the disputed fees to
the defendant instead of to the Mills Law Firm. As
clients of the Mills Law Firm, and as fiduciaries of the
funds, the plaintiffs argue that they have an interest in
the allocation of the disputed fees, which gives them
‘‘a say in the underlying actions.’’ The plaintiffs, how-
ever, fail to provide any legal authority, and we are
aware of none, to support their proposition that admin-
istrators of an estate have a ‘‘specific, personal and legal
interest’’; (internal quotation marks omitted) Trikona
Advisers Ltd. v. Haida Investments Ltd., supra, 318
Conn. 485; in how a court allocates the distribution of
attorney’s fees when the estate claims no interest in
any portion of those fees. Furthermore, besides the
Superior Court awarding a portion of the disputed fees
to a party not of the plaintiffs’ choosing, the plaintiffs
have not shown how they are ‘‘specifically and injuri-
ously affected’’; (internal quotation marks omitted) id.;
by the Superior Court’s allocation of the disputed fees.
Moreover, the Superior Court’s judgment, from which
the plaintiffs appeal and claim to be aggrieved, orders
that they retain a portion of the disputed fees, leaving
them paying $40,000, instead of $66,666.67, in attorney’s
fees. On the basis of these facts and the plaintiffs’ dis-
avowal of any claim to any portion of the disputed fees,
we conclude that the plaintiffs are not aggrieved by the
judgment of the Superior Court, and, thus, the plaintiffs
do not have standing to appeal from that judgment.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The coadministrators are Christopher Kusmit and Kelly Kusmit. We note
that, although the summons lists the named plaintiff as the estate of Connor
Kusmit, it is undisputed that the present action is maintained by the coadmin-
istrators. See Estate of Brooks v. Commissioner of Revenue Services, 325
Conn. 705, 706 n.1, 159 A.3d 1149 (2017), cert. denied, U.S. , 138 S.
Connecticut, 323 Conn. 26, 32, 144 A.3d 420 (2016) (‘‘An estate is not a legal
entity. It is neither a natural nor artificial person, but is merely a name
to indicate the sum total of the assets and liabilities of the decedent or
incompetent. . . . Not having a legal existence, it can neither sue nor be
sued.’’ [Internal quotation marks omitted.]). Accordingly, the caption has
been changed to reflect that.
2
The Probate Court for the district of East Haven-North Haven is a nonap-
pearing party in this case and any reference to the defendant refers to
Mahoney.
3
We note that, although the plaintiffs represent in their brief that they
entered into a one-third contingency fee agreement with Mills’ law firm, the
Mills Law Firm, LLC (Mills Law Firm), that agreement does not appear in
the record before us.
4
In a footnote, without explanation, the Superior Court stated that ‘‘Mills
withdrew any claim he had for a contingency fee from the $200,000 [underin-
sured motorist claim] settlement . . . .’’
5
The plaintiffs claim that the trial court improperly (1) agreed ‘‘to hear
an equitable claim by previously discharged counsel for additional legal fees
beyond those provided by the terms of a written contingency fee agreement,’’
(2) decided ‘‘a claim [for] attorney’s fees belonging to a nonparty . . . and
not belonging to the estate,’’ (3) awarded ‘‘additional legal fees based upon
claims in equity when counsel seeking the additional fees had been retained
by the estate pursuant to a written contingency fee agreement,’’ (4) heard
‘‘a claim for additional attorney’s fees after [that] issue had already been
previously adjudicated,’’ (5) granted ‘‘standing to [the defendant] absent a
motion to be added as a party,’’ (6) failed ‘‘to dismiss [the defendant’s]
claims for lack of subject matter jurisdiction,’’ (7) ruled ‘‘that [the defendant]
was entitled to [two thirds] of the contingency fee belonging to Mills Law
Firm,’’ (8) disqualified ‘‘legal counsel retained by the estate on the basis
[that] counsel would be an indispensable witness at the time of trial,’’ and
(9) ordered ‘‘a nonparty to refund part of an earned contingency fee when
no refund was sought by the plaintiff[s] in any pleading.’’
6
Additionally, when asked at oral argument if there is any possibility,
regardless of how this case is decided, that the estate would have to pay
more in legal fees than the disputed fees, the plaintiffs’ attorney answered:
‘‘Not to my knowledge.’’