2006 Ct. Sup. 18891
No. CV 05 400258 SConnecticut Superior Court Judicial District of Tolland at Rockville
October 12, 2006
CORRECTED MEMORANDUM OF DECISION
LAWRENCE C. KLACZAK, JUDGE TRIAL REFEREE.
The plaintiff, Nicholas J. Byrne, Jr. Appeals from two decrees of the probate court for the district of Ellington in the matter of the estate of Nicholas J. Byrne, Sr.
The decree of May 6, 2004 denied payment of a bill to the estate from the law firm of Boatman, Boscarino, Grasso Twactman without prejudice pending a hearing, denied an executor’s fee and a bill for educational expenses from the plaintiff; denied a bill from the defendant, Monica Banta without prejudice and approved other expenses not involved in this appeal.
The defendants in this appeal were as follows:
1. Attorney Mark R. Spurling, who was retained by Monica Banta in her capacity as the then administrator of the estate.
2. Monica Banta, a daughter of the deceased and the plaintiff’s sister.
3. Attorney John Grasso, who was retained by the plaintiff to represent his interests in the dispute over the validity of the will and distribution of the estate.
4. Attorney Cara Richert, successor administratrix; C.T.A. of the estate (successor to Monica Banta).
Attorney Richert filed a motion to strike to remove her as a party defendant. That motion was granted on September 26, 2005 (Peck, J.), and Attorney Richert therefore did not attend the trial de novo. CT Page 18892 Attorney Grease was represented by Attorney Anthony Nuzzo, Jr. Through his attorney, the defendant John Grasso withdrew his claim for unpaid counsel fees which was the subject of this appeal, citing as the reason that the plaintiff has filed a separate action, now pending in this Court, for legal malpractice and this defendant (Attorney Grasso) intends to claim its fees in the malpractice matter.
As to Attorney Spurling, this Court dismissed the appeal for the following reasons. The Spurling bill was approved by the Probate court on May 21, 2003 and was paid by Ms. Banta shortly thereafter. The plaintiff did not appeal the approval of Attorney Spurling’s fees until May 2005. While acting Probate Judge, John Cooney approved the late filing of an appeal of the decrees of May 6, 2004 and September 8, 2004 the only mention of the Spurling bill was in the decree re: motion for review dated September 8, 2004, which noted that the bill had been approved on May 21, 2003. In addition, this Court, on April 27, 2005, Scholl, J. in a mandamus action brought by the plaintiff against Probate Judge James Purnell, found the plaintiff was present at the probate court hearing on May 21, 2003 at which the Spurling bill was approved. Judge Cooney’s order did not allow for a late appeal of this bill.
Thus, when this final tie novo was held on July 17, 2006, the only viable defendant was Monica Banta.
In its decree of September 8, 2004, the probate court approved a bill to the estate from Ms. Banta in the amount of $3,500. This bill is a subject of the present appeal.
When hearing a probate appeal the Superior Court sits as the probate court and exercises the powers of a probate court The issues are tried de novo and this Court must consider the evidence presented, unfettered by the judgment of the probate court Locke and Kahn, Connecticut Probate Practice § 213; Kerin v. Stangle, 209 Conn. 260, 264 (1988). The burden of proof is on the party submitting the claims.
Two people testified in this trial de nova, Monica Banta and Nicholas Byrne, Jr. Both parties appeared pro-se. No documentary evidence was introduced by either party and they testified briefly.
Ms. Banta testified that she served as administratrix of the CT Page 18893 estate from 2002 to 2004. No other details were provided. In a nutshell, her testimony seems to essentially be that the approval of $3,500 by the probate court was reasonable. There was scant evidence for this Court to assess that claim. It is noted that Ms. Banta retained Attorney Spurling to contest the will of Nicholas Byrne, Sr. And his bill to the estate for $71,51.25 in that litigation was approved.
The plaintiff’s position in opposition to the approval of Ms. Banta’s bill is quite simple. He claims she is not entitled to any compensation for administratrix duties because this Court, in its decision of November 20, 2003, found that Ms. Banta had acted inappropriately in trying to persuade her sister, Ellen Byrne, to take her side of the will dispute in the probate court and also that she misappropriated $15,000 of their mother’s money and she has, therefore, “unclean hands” and should not be awarded any fees.
The issue before this Court at this time does not however, go to the validity of the father’s will. The issue is whether Ms. Banta can prove by a fair preponderance of the evidence that her bill to the estate for $3,500 is reasonable. This she has failed to do. This Court has no idea of what that bill encompassed, no idea of the hours claimed spent or other basis to substantiate for the claim. It is not enough that the probate court found that sum to be reasonable and awarded payment to her. The appeal is sustained as to the award of $3,500 to Ms. Banta for failure of proof.
The plaintiff has also appealed from the decree of the probate court denying his request for reimbursement of educational expenses and administrator or executor fees.
The educational expenses claimed were for reimbursement he claims were incurred when he enrolled in a paralegal studies program at Manchester Community College in order to gain expertise in his pro-se appeals to the Superior Court. In his trial brief he claimed $500, however, at trial he claimed a total of $1,500 which included his time for trial preparation, research and working on the appeal. (The $1,500 included the $500 college costs.)
The Court is unaware of any precedent that would allow the payment of college costs and the plaintiff has not cited to any such authority. This claim appears to be an estimate albeit CT Page 18894 according to the plaintiff, a conservative one. There is a lack of evidence to support this claim. A mere statement that his time is worth $1000 is, simply, insufficient evidence and the Court declines to award this claim. CT Page 18895