138 Conn. App. 695
Conn. App. Ct.2012Background
- probate matter: Stanislaw Kosiorek’s death and Terra Road property transferred to Bronislawa; Stanley Kosiorek appointed executor in 2004.
- attorney Matulis represented estate in earlier actions; mediation failed and recommended settlement ranges were discussed.
- in 2006, estate settled with Bronislawa for $35,000; quitclaim and mutual releases followed.
- Smigelski represented the estate in 2006–2007; fee agreement showed contingent one-third or hourly rate, but a page was hidden from the client.
- probate court later found Smigelski’s fee excessive; decree limited fee to $15,000 plus $1,000 expenses and required restoration of $54,833.33.
- plaintiff filed apre judgment remedy and later brought counts including CUTPA, breach, unjust enrichment, fiduciary duties, and statutory and common-law fraudulent conveyance related to 122 Main Street.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Stanley Kosiorek was a necessary/indispensable party. | Estate claims Stanley can recover fees owed by defendant. | Stanley, personally, liable for disallowed fee; must reimburse estate. | Stanley was not indispensable; proper in representative capacity. |
| Whether expert testimony was required on reasonableness of fees. | Circumstances allowed lay testimony; expert not required. | Expert needed to prove reasonableness. | Expert testimony not required given probation decree and testimony at trial. |
| Whether CUTPA proof supported damages for attorney fees. | Evidence showed unfair/deceptive legal practice; damages supported. | No deceptive practice proven; damages not proven. | CUTPA claim properly submitted; damages supported by evidence. |
| Whether statutory theft under § 52-564 was proven. | Estate owner; misappropriated $54,833.33; unlawful withholding. | Manner of fee calculation invalid; no theft proven. | Statutory theft supported; damages trebled for award; directed verdict affirmed. |
| Whether the court properly directed verdict against common-law fraudulent conveyance claims against 122 Main Street. | Defendant transferred 2/3 interest with fraudulent intent to hinder estate. | Transferees did not participate; value consideration adequate; no fraud. | Directed verdict proper for common-law fraud; directed verdict improper for § 52-552e claim; remanded on § 52-552e. |
Key Cases Cited
- Sutcliffe v. FleetBoston Financial Corp., 108 Conn. App. 799 (2008) (standard for reviewing directed verdicts and abuse of discretion)
- Demarest v. Fire Dept., 76 Conn. App. 24 (2003) (indispensable/necessary party distinction; nonjoinder remedy)
- St. Onge, Stewart, Johnson & Reens, LLC v. Media Group, Inc., 84 Conn. App. 88 (2004) (factors for attorney-fee reasonableness; entrepreneurial aspects)
- Disciplinary Counsel v. Smigelski, 124 Conn. App. 81 (2010) (preclusive effect of Probate Court decrees on executor fees)
- Gaynor v. Payne, 261 Conn. 585 (2002) (preclusive effect of probate decrees on fees)