JACEK I. SMIGELSKI v. MARK A. DUBOIS, CHIEF DISCIPLINARY COUNSEL
(AC 35793)
Appellate Court of Connecticut
September 30, 2014
DiPentima, C. J., and Alvord and Keller, Js.
Argued April 14—officially released September 30, 2014
All opinions are subject to modification and technical correction prior to official publication in the
The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the
Jacek I. Smigelski, self-represented, the appellant (petitioner).
Suzanne B. Sutton, first assistant chief disciplinary counsel, with whom was Beth Baldwin, assistant disciplinary counsel, for the appellee (respondent).
KELLER, J. The petitioner, Jacek I. Smigelski, an attorney formerly licensed to practice law in the state of Connecticut, appeals from the summary judgment rendered in favor of the respondent, Mark A. Dubois, chief disciplinary counsel, on the petitioner‘s petition for a new trial.1 On appeal, the petitioner claims that the trial court improperly determined that, as a matter of law, the petitioner was not entitled to a new trial because (1) there was no newly discovered evidence upon which the petitioner could base his claim; (2) the trial court did not render its judgment on the basis of fraud; and (3) the petitioner‘s right to due process of law had not been violated. The petitioner also argues that should a new trial be ordered, he is entitled to vacatur of several Superior Court and Appellate Court judgments related to this action that previously were rendered against him.2 We disagree and, accordingly, affirm the judgment of the trial court.
The following undisputed facts and procedural history are relevant to our resolution of the petitioner‘s claims. The petitioner formerly was a defendant in a presentment action brought by the respondent, who at the time was chief disciplinary counsel for the state. See generally Disciplinary Counsel v. Smigelski, 124 Conn. App. 81, 4 A.3d 336 (2010), cert. denied, 300 Conn. 906, 12 A.3d 1004, cert. denied, U.S. , 132 S. Ct. 101, 181 L. Ed. 2d 28 (2011). The presentment charged the petitioner with violating rules 1.5 (a) and 1.15 (b) of the Rules of Professional Conduct (2006) in connection with his representation of the estate of Stanislaw Kosiorek. The petitioner was retained by written agreement by the executor of the estate, Stanley Kosiorek.3 The retainer agreement provided that “the fee for legal services rendered by [the petitioner], will be based on an hourly charge of $225.00 per hour or it will be contingent upon recovery of benefits and shall be ONE-THIRD of the gross judgment or settlement, which ever amount is greater.” Additionally, Stanley Kosiorek paid the petitioner a retainer of $5000.
Specifically, the petitioner was retained by the estate to assist it in clearing the title to a property located at 28 Terra Road in Plainville. After Stanislaw Kosiorek‘s death, the heirs discovered that, less than one year earlier, he had married Bronislawa Kosiorek and had transferred to her a survivorship interest, by way of a quitclaim deed, in the Terra Road property. The property was the estate‘s only asset. Suspecting that Bronislawa Kosiorek, who was nineteen years younger than her late husband, had exercised undue influence or engaged in outright forgery in obtaining the survivorship interest in the property, the heirs brought a civil action to have the transfer set aside. Settlement negotiations, however, had broken down when Bronislawa Kosiorek refused to accept a payment of less than
Thereafter, with the approval of the Plainville Probate Court, the heirs agreed to sell the Terra Road property to Stanley Kosiorek‘s son and daughter-in-law, Adam Kosiorek and Kylie Kosiorek, for $212,500. The heirs also agreed that to facilitate the sale of the property, the estate would contribute to the buyer a “gift of equity” in the amount of $42,500 as a down payment for the buyers’ mortgage. On December 21, 2006, the petitioner represented the estate at the closing for the sale of the property where Stanley Kosiorek signed the paperwork and authorized a check in the amount of $155,300.82,5 the proceeds from the sale, to be made out to “Jacek Smigelski, Trustee.”
On December 26, 2006, Stanley Kosiorek went to the petitioner‘s office to retrieve the check for the funds payable to the estate. The petitioner explained that the value of the property was $257,000, and, under the terms of the retainer agreement, his fees amounted to one third of that amount, or $85,665.81. Significantly, the petitioner relied on a comparative market analysis that valued the property at $257,000 in calculating his fee. The petitioner added to his fee $1004.99 in probate fees and subtracted the retainer of $5000 as well as a “courtesy” discount of $14,832.48, resulting in a total due to the petitioner of $66,838.32 in legal fees. This amount was subtracted from the net proceeds of the closing and paid to the petitioner, leaving the estate with $88,462.50.
On December 30, 2006, Stanley Kosiorek‘s brother, Kazimierz Kosiorek,6 filed a complaint with the Statewide Grievance Committee in which he alleged that the petitioner had violated rules 1.5 (a)7 and 1.15 (b)8 of the Rules of Professional Conduct (2006) by withholding a portion of the settlement proceeds from the sale of the property by the estate, which Kazimierz Kosiorek alleged rightfully belonged to the estate.9
Following a finding of probable cause by a local grievance panel, the reviewing committee of the Statewide Grievance Committee held an evidentiary hearing at which the respondent tried the case. Pursuant to
The presentment was tried before the court, Pittman, J., by Assistant Chief Disciplinary Counsel Suzanne B. Sutton over the course of two days. On August 31, 2009, in a memorandum of decision, the court found that the disciplinary counsel had proven by clear and convincing evidence that the petitioner, intentionally and wilfully, had violated
Prior to the presentment proceeding, in 2007, Stanley Kosiorek, as executor of his father‘s estate, brought a civil action against the petitioner. See Kosiorek v. Smigelski, 138 Conn. App. 695, 54 A.3d 564 (2012), cert. denied, 308 Conn. 901, 60 A.3d 287 (2013). During the course of those proceedings, it was revealed that a real estate appraisal of the property, dated September 29, 2006, had been performed which valued the property at $254,000.12 This appraisal was included as an itemized payment on the United States Department of Housing and Urban Development‘s HUD-1 settlement statement (HUD-1) that had been prepared in connection with the buyers’ application for a mortgage. Specifically, the HUD-1 listed, as an item payable from the borrower‘s funds at settlement, an “Appraisal Fee” payable to “L.R. Evjen Appraisal Services” in the amount of $350. When the grievance proceedings commenced, the HUD-1 was sent to the petitioner as an exhibit attached to the grievance complaint. The petitioner acknowledged receipt of the grievance complaint in a response dated February 2, 2007. The September 29, 2006 appraisal was not used as evidence in the presentment action.
The petitioner filed the present petition for a new trial on October 28, 2010. Therein, the petitioner made the following allegations. Both the grievance panel and the reviewing committee, in finding probable cause that the petitioner had committed professional misconduct by charging an unreasonable fee, “substantially relied on the ‘gross value of real estate’ or the [comparative]
Further, the petitioner alleges that Stanley Kosiorek had been aware of the September 29, 2006 appraisal since September, 2006, but “intentionally failed to disclose [the appraisal] and fraudulently manipulated [the] court, the grievance panel, [and] the reviewing committee . . . in order to pervert or subvert the truth . . . .” Similarly, the petitioner alleges that the respondent “knew or should have known about this appraisal . . . but negligently or intentionally failed to disclose [it] to the disciplinary grievance panel, to the reviewing committee, or to the court or to the [petitioner].” The petitioner alleges that Stanley Kosiorek committed fraud by misrepresenting to the court that there was an additional appraisal valuing the property at $170,000, rather than $254,000, and that disciplinary counsel should have corrected the misrepresentation, implicating the petitioner‘s right to due process of law.14 The gravamen of the petitioner‘s allegations appears to be that because the property values in the comparative market analysis and the September 29, 2006 appraisal are “virtually identical,” the grievance panel, the reviewing committee, and the court likely would have found the petitioner‘s fee reasonable had they been aware of the September 29, 2006 appraisal. The petitioner appears to argue that because these two valuations indicate a relatively high market value, as opposed to the $170,000 figure stated at trial, the court would have found his $66,838.32 fee to be reasonable.
The respondent filed a motion for summary judgment and memorandum of law on October 2, 2012, to which the petitioner objected. Therein, the respondent argued that he was entitled to summary judgment as a matter of law in the absence of any genuine issue of material fact as to whether (1) the September 29, 2006 appraisal does not constitute newly discovered evidence and therefore is not grounds for a new trial; and (2) the judgment rendered against the petitioner was not obtained as a result of fraud on the court. In the petitioner‘s memorandum of law in opposition to the motion for summary judgment, he rejected the respondent‘s claims and asserted that he is entitled to a new trial on the ground that his right to due process was violated by the respondent‘s failure to disclose the September 29, 2006 appraisal or correct Stanley Kosiorek‘s testimony that the property was appraised at $170,000. In support of its motion for summary judgment, the respondent submitted, inter alia, the affidavits of Assistant Chief Disciplinary Counsel Sutton and Elizabeth M. Rowe, assistant bar counsel for the Office of Statewide Bar Counsel. The petitioner submitted, in addition to other documentary evidence, his own affidavit.
As a preliminary matter, we set forth the standard of review and other legal principles that guide our analysis. “The standard of review of motions for summary judgment is well settled.
“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. . . . To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. . . . [I]t is only [o]nce [the] [movant‘s] burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] [nonmovant] to show that a genuine issue of fact exists justifying a trial.” (Citations omitted; internal quotation marks omitted.) Deutsche Bank Trust Co. Americas v. DeGennaro, 149 Conn. App. 784, 786–87, 89 A.3d 969 (2014).
I
The petitioner argues that because the September 29, 2006 appraisal constitutes new evidence, he was entitled to a new trial pursuant to
“Pursuant to
“[I]n determining whether a different result would be produced in a new trial, a trial court necessarily must engage in some form of credibility analysis. . . . The trial court must always consider the newly discovered evidence in the context of the evidence presented in the original trial. . . . [Thus, if] the trial court determines that the evidence is sufficiently credible so that, if a second [finder of fact] were to consider it together with all of the original trial evidence, it probably would yield a different result or otherwise avoid an injustice, the fourth element of the Asherman test would be satisfied. . . . By a different result, we mean that the new evidence would be likely to result in acquittal of the petitioner, not merely that it might cause one or more jurors to have a reasonable doubt about the petitioner‘s guilt. . . . Finally and significantly, it is well settled that whether the evidence satisfies the aforementioned standard is within the trial court‘s sole discretion, and
“Whether trial counsel has fulfilled his or her duty to conduct a reasonable investigation forms the linchpin issue in a petition for a new trial made on the basis of newly discovered evidence. [T]o entitle a party to a new trial for newly-discovered evidence, it is indispensable that he should have been diligent in his efforts fully to prepare his cause for trial; and if the new evidence relied upon could have been known with reasonable diligence, a new trial will not be granted. . . . Therefore, [t]he [petitioner] has the burden of proving that the evidence . . . could not have been discovered and produced [in] the former trial by the exercise of due diligence . . . . Due diligence does not require omniscience. Due diligence means doing everything reasonable, not everything possible. . . . The question which must be answered is not what evidence might have been discovered, but rather what evidence would have been discovered by a reasonable [petitioner] by persevering application, [and] untiring efforts in good earnest.” (Citations omitted; internal quotation marks omitted.) Id., 506–507.
On the basis of the evidence before it, the court first turned to the issue of whether the evidence offered in support of the petitioner‘s claim for a new trial was newly discovered, meaning that it could not have been discovered previously despite the exercise of due diligence. The court determined that the “[respondent] had produced evidence to show the nonexistence of any genuine issue of material fact as to [the] claim that the September 29, 2006 appraisal does not constitute newly discovered evidence because the [petitioner] reasonably could have discovered the appraisal at the time of his trial through the exercise of due diligence.” In turn, the petitioner failed to produce any evidence that gave rise to a disputed issue of material fact concerning whether the appraisal was unknown or undiscoverable through the exercise of due diligence at or prior to the presentation. We agree with the court.
The petitioner in the present case hardly can argue that he presented the court with evidence demonstrating that he employed “persevering application, [and] untiring efforts in good earnest” to discover the contents of the appraisal at issue. (Internal quotation marks omitted.) Skakel v. State, supra, 295 Conn. 507. As the court noted, the petitioner was in possession of a copy of the HUD-1 form that indicated that an “appraisal fee” in the amount of $350 was to be paid by the buyers to “L.R. Evjen Appraisal Services.” Rowe, an assistant bar counsel with the Office of Statewide Bar Counsel, averred in her affidavit that in the course of her duties
A reasonable investigation and reading of the HUD-1 certainly would have notified the petitioner of the existence of a real estate appraisal aside from the comparative market analysis on which he ultimately relied in calculating his fee. Although the HUD-1 simply reveals the existence of the appraisal, and not its contents, the petitioner does not offer any evidence to suggest that the appraisal could not have been discovered through the exercise of due diligence. Indeed, he offers no evidence or explanation as to what efforts he undertook to learn of the September 29, 2006 appraisal. “[T]he burden of showing due diligence [rests] solely and throughout on the [petitioner].” (Internal quotation marks omitted.) Terracino v. Fairway Asset Management, Inc., 75 Conn. App. 63, 75, 815 A.2d 157, cert. denied, 263 Conn. 920, 822 A.2d 245 (2003); see also Asherman v. State, supra, 202 Conn. 434 (“[t]he petitioner must demonstrate, by a preponderance of the evidence, that . . . the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence“). The petitioner has failed to meet his burden of showing that there was an issue of genuine fact as to whether he exercised due diligence in attempting to discover and obtain the appraisal. Indeed, a thorough review of the record indicates the opposite.
“[D]ue diligence is a condition precedent to successfully prosecuting a petition for a new trial . . . .” (Citation omitted.) Terracino v. Fairway Asset Management, Inc., supra, 75 Conn. App. 80. In light of our conclusion that the court correctly determined that, as a matter of law, and in the absence of any genuine issue of material fact, the petitioner failed to demonstrate that the September 29, 2006 appraisal could not have been discovered through the exercise of due diligence, we need not address whether the evidence was material to the issues or likely to produce a different result in a new trial.
II
The petitioner next claims that the court improperly granted the respondent‘s motion for summary judgment by finding, as a matter of law, that the judgment rendered against him was not a result of a fraud on the
“[I]n all contexts, when one party has made fraudulent representations to a court, or caused a court to be misled in some way, it could be said generally that the party has committed fraud on the court. . . . The statutory remedy for fraud on the court is that the Superior Court may grant a new trial for reasonable cause;
“In Varley v. Varley, 180 Conn. 1, 4, 428 A.2d 317 (1980), our Supreme Court imposed four requirements on those seeking relief from a judgment secured by fraud: ‘(1) There must have been no laches or unreasonable delay by the injured party after fraud was discovered. (2) There must have been diligence in the original action, that is, diligence in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a substantial likelihood that the result of the new trial will be different.’ . . . The court, in Varley, explained: ‘Where an unsuccessful party has been prevented, by fraud or deception, from exhibiting fully his case . . . a new suit may be sustained to set aside and annul the former judgment and open the case for a new and fair hearing.’ ” (Footnote omitted.) Duart v. Dept. of Correction, 116 Conn. App. 758, 769, 977 A.2d 670 (2009), aff‘d, 303 Conn. 479, 34 A.3d 343 (2012). Our Supreme Court later modified the fourth requirement and “rephras[ed] the fourth prong to require a movant to demonstrate a reasonable probability, rather than a substantial likelihood, that the result of a new trial will be different.” Duart v. Dept. of Correction, 303 Conn. 479, 491, 34 A.3d 343 (2012).
The petitioner appears to argue that the judgment rendered against him was secured by fraud because Stanley Kosiorek represented to the court that a real estate appraisal had valued the property at $170,000, and the respondent failed to correct this misrepresentation where the appraisal valued the property at $254,000. We are not convinced. Although on redirect examination Stanley Kosiorek represented to the court that an additional appraisal performed in connection with Adam Kosiorek‘s application for a mortgage valued the property at $170,000, this statement was stricken from the record. See footnote 14 of this opinion. Additionally, Sutton, the assistant chief disciplinary counsel
We therefore conclude that the court properly found that the petitioner failed to provide evidence during the hearing on the respondent‘s motion for summary judgment that supported his claim of fraud. Accordingly, the court properly granted the respondent‘s motion for summary judgment on the grounds of absence of fraud on the court.
III
The petitioner finally claims that his rights to due process of law and a fair trial were violated by the respondent‘s “failure to correct the false and misleading testimony of [Stanley Kosiorek],” and failure to disclose the materially favorable evidence of the Evjen appraisal, in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).15 The petitioner argues that he is therefore entitled to a new trial. We disagree.
As a preliminary matter, we set forth the legal principles relevant to this due process claim. “Because a license to practice law is a vested property interest and disciplinary proceedings are adversary proceedings of a quasi-criminal nature, an attorney subject to discipline is entitled to due process of law. . . .
“Due process does not mandate a particular procedure but rather requires only that certain safeguards exist in whatever procedural form is afforded. . . . In [presentment] proceedings such as this a defendant is entitled to notice of the charges against him, to a fair hearing, and a fair determination, in the exercise of a sound judicial discretion, of the questions at issue, and to an appeal to [an appellate] court for the purpose of having it determined whether or not he has in some substantial manner been deprived of such rights. . . .
“The ultimate question is whether he is a fit person to be longer allowed the privileges of being an attorney. . . . His relations to the tribunal and the character and purpose of the inquiry are such that unless it clearly appears that his rights have in some substantial way been denied him, the action of the court will not be set aside upon review.” (Citations omitted; internal quotation marks omitted.) Disciplinary Counsel v. Villeneuve, 126 Conn. App. 692, 701–702, 14 A.3d 358 (2011).
The gist of the petitioner‘s claim is that the hearing was unfair because the respondent effectively suppressed evidence of the September 29, 2006 appraisal. Although we conclude that Brady does not apply in the present case, Brady nonetheless provides some guidance in our evaluation of the due process claim raised by the petitioner. “[I]t is well established that evidence is not considered to have been suppressed within the meaning of the Brady doctrine if the defendant or his attorney either knew, or should have known, of the essential facts permitting him to take advantage of [that] evidence. . . . The rationale underlying this exception to the state‘s disclosure obligation under Brady is obvious: Brady is designed to assure that the defendant is not denied access to exculpatory evidence
The judgment is affirmed.
In this opinion the other judges concurred.