6 Conn. App. 530 | Conn. App. Ct. | 1986
In this action, the defendants, Dichello Distributors, Inc. (DDI), James Dichello and Burton Zempsky,
A brief summary of the undisputed facts and certain of the trial court’s conclusions and orders is necessary
Zempsky and John Dichello, Jr. (Dichello, Jr.), were appointed coexecutors and cotrustees under the decedent’s original will and the stock was transferred to them in their fiduciary capacities. In 1984, the plaintiff, Gloria Dichello Hall, and her mother, Mildred Dichello, offered for probate a later will than that under which Zempsky and Dichello, Jr., were appointed. The Probate Court admitted that will which appointed Hall sole executrix and trustee. Zempsky and James Dichello, however, refused to recognize Hall’s ownership of the 50 percent of the shares of DDL While Zempsky and Dichello, Jr., delivered to Hall all of the other assets of the decedent’s estate, Zempsky refused to deliver the stock certificates to Hall and to have them registered in her name.
Zempsky, in Zempsky’s Appeal from Probate, 6 Conn. App. 521, 506 A.2d 1050 (1986), the companion to this case, appealed the Probate Court’s action, which in effect removed him as executor and trustee, to the Superior Court. The court dismissed the case finding that it did not have jurisdiction over Zempsky’s appeal because he had not shown aggrievement by the decrees of the Probate Court as required by General Statutes §§ 45-288 or 45-293. Today, we affirmed that judgment.
On September 13,1984, Hall commenced this action against DDI, James Dichello, Zempsky and Dichello,
I
Whether the Trial Court Erred in Finding That It Had Jurisdiction Over the Plaintiff’s Action
The defendants first claim that the Superior Court’s decree violates the statutory division of jurisdiction between the Probate Court and the Superior Court. Their argument relies on three statutes: General Statutes § 45-4 which recites the general powers of Probate Courts;
The defendants also rely on three cases for the undoubted proposition stated in First National Bank & Trust Co. v. McCoy, 124 Conn. 111, 115, 198 A. 183
Neither these cases, nor the statutes cited above, support the defendants’ claim in this case, that either original or exclusive jurisdiction lies with the Probate Court. On the contrary, these cases make clear the limited types of actions over which the Superior Court does not exercise original jurisdiction: namely custody of a child not the issue of the marriage involved in a divorce, settlement of an executor’s or administrator’s account, and the question of due execution of a will. In defining the extent and nature of the Probate Court’s jurisdiction, these cases make it very clear that the Superior Court had jurisdiction over this case. “ ‘ “The fact that no other court has exclusive jurisdiction in any matter is sufficient to give the Superior Court jurisdiction of that matter.” ’ [State Ex Rel. Morris v. Bulkley, 61
The Probate Court, because of its limited statutory-jurisdiction,
The court did not err in holding that it had jurisdiction of the case and in denying the defendant DDI’s
II
Whether the Trial Court Erred in Failing to Stay the Case Until the Plaintiff’s Status as Trustee and Executrix Had Been Finally Determined
The defendants now claim that the trial court erred in denying their motion for a stay in which they claimed
The filing of a probate appeal does nothing to impair the decree appealed from. Stevens’Appeal, 157 Conn. 576, 580-81, 255 A.2d 632 (1969); Silverstone v. Lillie, 141 Conn. 104, 107, 103 A.2d 915 (1954). “Since the appeal does not vacate the decree appealed from, . . . the dismissal of the appeal leaves the decree as it was before, in full force.” 1 Locke & Kohn, Connecticut Probate Practice § 205. Here, the Superior Court concluded that “[t]he orders and decrees of the Probate Court of April 2,1984, have not been stayed, vacated, or suspended” and that they “remain wholly effective.” Its decision was correct.
“A motion for continuance is addressed to the discretion of the trial court, and its ruling will not be overturned absent a showing of a clear abuse of that discretion.” Vossbrinck v. Vossbrinck, 194 Conn. 229, 232, 478 A.2d 1011 (1984), cert. denied, 471 U.S. 1020, 105 S. Ct. 2048, 85 L. Ed. 2d 311 (1985). Because the Probate Court’s decree appointing Hall was still in effect at the time the defendants brought this action, there already was an existing determination of the plaintiff’s fiduciary status. Accordingly, the court did not abuse its discretion by denying the defendant’s motions.
We need go no further in answering this argument; the case did proceed to an adjudication on the merits,
Ill
Whether the Trial Court Erred in Holding That the Plaintiff Had Complied With or Was Excused From Complying With the Statutory Prerequisites of General Statutes § 42a-8-401 and § 33-310 (d) Regarding Possession and Presentment of the Stock Certificates
The defendants claim that Hall did not comply with General Statutes § 42a-8-401
This is an unreasonable reading of the two statutes which leads to the bizarre result of allowing Zempsky, by his refusal to deliver the shares of stock to Hall, to thwart the intention of the statutes. It also overlooks the trial court’s findings. The court concluded that “Zempsky is in possession of the certificates of the fiduciary shares and he refuses to deliver possession of said certificates, although demand to do so was duly made by Hall.” The court also found that “Hall has been prevented from presenting the certificates for transfer of registration by the actions of the defendants” and that “[transfer of record of the certificates of said fiduciary shares to the plaintiff in her fiduciary capacity has been unreasonably delayed by the defendants.” On the basis of these findings, the court concluded that the plaintiff should be deemed a shareholder of record and ordered Zempsky to deliver the certificates to Hall. The judgment provided accordingly.
The court, by ordering delivery and registration, complied with both the letter and the spirit of the relevant statutes. The law does not always require a fiduciary to register formally the transfer of a decedent’s shares in order to vote them. Connecticut General Statutes § 33-311a (d). Additionally, the statutory provision on registration of securities should be “liberally construed and applied to promote [the] underlying purposes and policies” of the Uniform Commercial Code. General Statutes § 42a-l-102 (1). Those purposes and policies are explained in the Official Comments which accompany each section of the Uniform Commercial Code. In the Official Comment to the 1962 amendments to Article 8, the drafters stress that [General Statutes § 42a-8-401] is not intended to create artificial obstacles: “This section does not constitute a mandate that all
The policy behind requiring presentment of certificated securities in the ordinary case is to protect the issuer from competing claims as to which it has no knowledge. See Danaher v. C. N. Flagg & Co., 181 Conn. 101, 109 n.3, 434 A.2d 944 (1980). It is obvious that no such condition prevails here. Here, the shares stood in the names of Zempsky and Dichello, Jr., the former cofiduciaries, and Hall, as fiduciary, had a duty to obtain a change in the registration. The court did not err in ordering the delivery of and registration of the stock certificates.
IV
Whether the Trial Court Erred in Determining That the Plaintiff Was Entitled to Be Considered a Shareholder of Record As of September 13, 1984; In Ordering the Defendants to Hold a Special Meeting of Shareholders on June 26, 1985, for the Purpose of Electing Directors; In Enjoining the Defendants, Pending Said Special Meeting of June 26, 1985, From Taking the Actions Set Forth in Its Memorandum of Decision
A trial court has the authority to fashion appropriate equitable relief; Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975); and balancing the equities is a matter of the trial court’s discretion, in which it is not bound by a formula but is free to fashion relief “molded to the needs of justice.” Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 54, 492
The orders of the court challenged here were supported by the facts found and were carefully structured to meet the practical problems of a corporation with a fifty-fifty stock split and were well within the discretion of a court of equity. In these arguments, the defendants are merely rehashing their persistent claim
The defendants further claim that a conflict of interest may arise between Hall’s duties as a fiduciary and her duties as an official of DDI, and accordingly, in equity, the court could not have fashioned the remedy it did. The short answer is that there is no conflict of interest. Hall as a fiduciary must vote her stocks to protect the trust beneficiaries’ interests in the corporation. This is exactly what the testator wanted. The court did not err in the orders at issue.
There is no error.
The defendant John Dichello, Jr., has not joined in this appeal.
Under General Statutes § 42a-8-102, the stocks involved in this case are “certificated securities.”
The defendant Dichello, Jr., has not opposed Hall’s request. He is a defendant in a technical sense only since he is secretary of DDI.
A judgment of liability only is not generally final; the appeal must wait until after the hearing in damages. Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 84, 495 A.2d 1063 (1985). In this case, however, the damages sought are clearly separable from the equitable relief sought. The damages are so separate, in fact, that the lower court refused to award them, holding that the plaintiff’s request for damages was actually in the nature of a request for reimbursement of attorney’s fees incurred in the prosecution of this action. Because the nature of the damages sought here is so different from those in a liability context, and is so separable from the cause of action, this case is distinguishable from Stroiney v. Crescent Lake Tax District, supra. Accordingly, we find that the judgment appealed from is a final judgment.
General Statutes § 45-4 provides: “general powers. Courts of probate in their respective districts shall have the power to grant administration of intestate estates of persons who have died domiciled in their districts and of intestate estates of persons not domiciled in this state which may be granted as provided by section 45-195, to admit wills to probate of persons who have died domiciled in their districts or of nondomiciliaries whose wills may be proved in their districts as provided in section 45-170, to call executors, administrators, trustees, guardians and conservators to account concerning the estates entrusted to their charge, and to make any lawful orders or decrees to carry into effect the power and jurisdiction conferred upon them by the laws of this state.”
See General Statutes § 45-4 in footnote 5, supra.
General Statutes § 45-265 allows a Probate Court to enforce the delivery of property “in the same manner as a court of equity might do. ” (Emphasis added.) Such language leaves no doubt that the jurisdiction involved is concurrent.
Although the defendant James Dichello and Burton L. Zempsky joined in the brief of DDI, only DDI raised this claim in the court below.
The appellants might have avoided the mootness question by filing a motion for stay directly with the Appellate Court pursuant to Practice Book § 3096 (4).
General Statutes § 42a-8-401 (1) provides in pertinent part: “If a certificated security in registered form is presented to the issuer with a request to register transfer or an instruction is presented to the issuer with a request to register transfer, pledge or release, the issuer shall register the transfer, pledge or release as requested . . . .”
So pervasive is this position, that the defendants inveigh in their briefs against certain requests Hall made during the litigation which were not even granted by the court.