Kemon v. Boudreau
AC42918, AC42919
| Conn. App. Ct. | Jun 29, 2021Background
- Solon Kemon created an inter vivos trust in 2009 naming his daughter Elizabeth (trustee) and son Kenneth S. (beneficiary). Elizabeth died May 2016; Kenneth Boudreau became executor/successor trustee.
- In August 2016 Boudreau filed a probate accounting (2016 accounting) reporting trust largely disbursed except a $50,000 lawyers’ trust litigation reserve; the Probate Court approved the accounting in January 2017.
- Kenneth S. appealed the probate approval to Superior Court (2017 probate appeal) and separately sued Boudreau in 2018 (2018 action) asserting six counts: compel accounting; breach of trust; breach of implied covenant; breach of fiduciary duty; objection to the 2018 accounting; and tortious interference.
- While cases were pending and consolidated, Boudreau delivered an updated full accounting (2018 accounting) to Kenneth S. in August 2018. The consolidated matters were tried in March 2019; the trial court entered judgment for the defendant in both matters.
- On appeal, the court held (1) the trial court erred in finding plaintiff abandoned counts 2, 3, 4, and 6 and remanded those counts for a new trial, and (2) the 2017 probate appeal became moot when the 2018 accounting was delivered, depriving the Superior Court of subject‑matter jurisdiction and requiring dismissal rather than a merits judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counts 2, 3, 4, and 6 were abandoned at trial | Kenneth S. argues he preserved those counts by adducing evidence and advancing them in closing (including alleging wilful/wanton conduct and seeking punitive attorney’s fees) | Boudreau argues plaintiff limited relief during closing and thus abandoned those counts | Court erred in finding abandonment; plaintiff adequately advanced those counts; reversed and remanded for new trial on those counts |
| Whether the trial court could use a postjudgment articulation to change its original basis for decision | Plaintiff contends articulation cannot substitute a new rationale inconsistent with the memorandum of decision | Defendant defends the court’s posthoc merits explanation | Articulation cannot change the court’s original decision; inconsistent merits discussion in articulation must be disregarded |
| Whether the 2017 probate appeal became moot after delivery of the 2018 accounting | Kenneth S. contends receipt of the full accounting satisfied the relief sought in the probate appeal, rendering it moot | Boudreau did not meaningfully contest that delivery of the 2018 accounting mooted the appeal in the trial court | Court agrees the appeal became moot upon delivery of the 2018 accounting in August 2018; Superior Court lost subject‑matter jurisdiction |
| Proper form of disposition for the probate appeal | Plaintiff seeks dismissal for lack of jurisdiction rather than a merits judgment for defendant | Defendant obtained a merits judgment below | Because the court lacked jurisdiction, the correct disposition is dismissal, not a merits judgment; the form of judgment was improper |
Key Cases Cited
- Solek v. Commissioner of Correction, 107 Conn. App. 473 (2008) (standards on abandonment and review of mixed factual/legal determinations)
- Auerbach v. Auerbach, 113 Conn. App. 318 (2009) (court must respond to claims fairly advanced)
- Koper v. Koper, 17 Conn. App. 480 (1989) (articulation may not substitute a new decision or change basis of prior decision)
- Sosin v. Sosin, 300 Conn. 205 (2011) (disregarding articulation inconsistent with original order)
- Abel v. Johnson, 194 Conn. App. 120 (2019) (mootness and justiciability principles; practical relief requirement)
- Gershon v. Back, 201 Conn. App. 225 (2020) (when court finds no jurisdiction it must dismiss)
- Silverstein v. Laschever, 113 Conn. App. 404 (2009) (nature of Superior Court review on probate appeals)