Byrne v. Burke

• Citation: 112 Conn.App. 262,962 A.2d 825
• Decision Date: 20 January 2009
• Docket Number: No. 29237.,29237.
• Court: Appellate Court of Connecticut
• Parties: Nicholas J. BYRNE, Jr. v. Martin B. BURKE et al.

962 A.2d 825

112 Conn.App. 262

Nicholas J. BYRNE, Jr. v. Martin B. BURKE et al.

No. 29237.

Appellate Court of Connecticut.

Argued September 25, 2008.

Decided January 20, 2009.

Nicholas J. Byrne, Jr., pro se, the appellant (plaintiff).

Dawn E. Alderucci, with whom, on the brief, were Kerry R. Callahan, David R. Makarewicz and Daniel B. Fitzgerald, Hartford, for the appellee (named defendant).

David P. Atkins, with whom, on the brief, was Marcy Tench Stovall, New Haven, for the appellee (defendant Mark R. Spurling).

DiPENTIMA, HARPER and BERDON, Js.

HARPER, J.

The plaintiff, Nicholas J. Byrne, Jr., appeals from the summary judgment rendered by the trial court in favor of the defendants Martin B. Burke and Mark R. Spurling.¹ On appeal, the plaintiff claims that the court improperly concluded, as a matter of law, (1) on the civil conspiracy count against Burke, that the plaintiff's cause of action was time barred; (2) on the breach of fiduciary duty count, that the plaintiff did not establish that Burke owed him a fiduciary duty; (3) on the civil conspiracy count against Burke, that Burke's deposition testimony in a probate hearing and testimony during a court hearing were not inconsistent; (4) on the vexatious litigation count, that the Probate Court's ruling, in favor of Spurling's client, is conclusive evidence of probable cause to initiate probate proceedings; (5) on the vexatious litigation count, that the plaintiff did not prove a claim for vexatious litigation; and (6) on the civil conspiracy count against Spurling, that the plaintiff's conspiracy count was based on the same facts that the court relied on to dismiss the vexatious litigation count. We disagree with the plaintiff and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiff's claims. The court found the following facts to be undisputed. "In April, 1997, Burke, who is an attorney, prepared a will for the plaintiff's father, Nicholas Byrne, Sr., which the plaintiff's father signed in Burke's office on April 7, 1997 [1997 will]. The 1997 will left the testator's residence in equal shares to his two sons and left his residuary estate in equal shares to his daughters. The 1997 will specifically excluded one of the testator's daughters, Monica Banta. The will appointed the plaintiff executor and was witnessed by a paralegal employed by Burke and an employee of another tenant of the building where Burke's law office was located.

"On October 1, 2000, the testator died, and on November 10, 2000, the plaintiff initiated the probate process by submitting the 1997 will and a prior 1978 will of his parents to the Ellington district Probate Court.... Banta challenged the 1997 will on the grounds that her father lacked testamentary capacity when he executed the 1997 will and was under the undue influence of the plaintiff. She retained ... Spurling to represent her. Spurling and Burke both had offices at 130 Union Street in Vernon. While the plaintiff alleges that Spurling and Burke had a `de facto partnership,' Burke has submitted an affidavit in which he states that while he and Spurling share office space at 130 Union Street, Spurling has his own separate law practice, and they have never been associates or partners in their legal practices....

"On May 4, 2001, Burke was deposed in the probate proceeding, and his deposition was used in lieu of his live testimony at a May 9, 2001 hearing before probate Judge James Purnell III. After the hearing, [in an oral ruling] Judge Purnell rejected the 1997 will as the product of undue influence. Judge Purnell issued a written decision on June 25, 2001, holding that the 1997 will did not revoke any prior wills or codicils. On January 16, 2002, Judge Purnell issued another written decision in which he approved and admitted to probate a September 24, 1996 hand-written will in which the testator appointed ... Banta [executrix] and directed that his estate be divided equally among all his children. The plaintiff appealed [from] the Probate Court decisions to the Superior Court, where a de novo trial was conducted by Hon. Lawrence C. Klaczak, judge trial referee. [Burke submitted live testimony to the Superior Court on November 12, 2003, at which he disclosed a January, 1997 letter that Burke addressed to the testator reflecting the testator's contemplation to exclude Banta from his will.] In a ... memorandum of decision filed November 20, 2003, Judge Klaczak reversed the Probate Court decree, finding [that] the September 24, 1996 will was invalid and [that] the ... 1997 will was valid." (Citation omitted.)

In the present appeal, the plaintiff, appearing pro se, filed a four count complaint directed against Burke and Spurling.² The complaint, dated November 16, 2006, concerned the defendants' actions while the plaintiff was defending the 1997 will before the Probate Court. In his amended complaint, filed on December 26, 2006, the plaintiff alleged in count one, a claim of vexatious litigation against Spurling, in count two, a claim of conspiracy against both Spurling and Burke, and in counts three and four, a claim of breach of fiduciary duty and intentional infliction of emotional distress, respectively, against Burke.

Thereafter, each defendant filed a motion for summary judgment. Spurling argued that he was entitled to summary judgment on counts one and two on the ground that the probate proceeding he initiated was decided in favor of his client and established probable cause. Burke argued that he was entitled to summary judgment on all counts directed against him on the ground that the tort claims were time barred by General Statutes § 52-577.³

In his objection to Spurling's motion for summary judgment, the plaintiff argued that questions of material fact existed, such as whether Spurling had probable cause to initiate a probate proceeding and whether Spurling conspired with Burke to have the Probate Court reject the 1997 will on the basis of Burke's allegedly false deposition testimony. In his objection to Burke's motion for summary judgment, the plaintiff argued that questions of material fact existed, such as whether Burke fraudulently concealed a January, 1997 letter that, the plaintiff posits, subsequently, aided the Superior Court in the probate appeal in determining that the 1997 will was valid. The plaintiff further argued that Burke's concealment resulted in fraud that tolled, under General Statutes § 52-595,⁴ the statute of limitations.

On July 7, 2007, the court heard oral arguments and, by memorandum of decision filed September 4, 2007, granted both defendants' motions for summary judgment and thereafter rendered judgment in the defendants' favor. This appeal followed. Additional facts will be set forth as necessary.

Before considering the plaintiff's claims on appeal, we first note our well established standard of review. "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Viola v. O'Dell, 108 Conn.App. 760, 763-64, 950 A.2d 539 (2008).

"A material fact is a fact that will make a difference in the outcome of the case.... Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court...." Campbell v. Plymouth, 74 Conn.App. 67, 80-81, 811 A.2d 243 (2002).

"[I]ssue-finding, rather than issue-determination, is the key to the procedure.... [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment.... [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Precision Mechanical Services, Inc. v. T.J. Pfund Associates, Inc., 109 Conn.App. 560, 564, 952 A.2d 818, cert. denied, 289 Conn. 940, 959 A.2d 1007 (2008). "The test is whether a party would be entitled to a directed verdict on the same facts.... A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Emphasis added; internal quotation marks omitted.) Weiner v. Clinton, 106 Conn.App. 379, 383, 942 A.2d 469 (2008).

"On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... Because the trial court rendered judgment for the defendants as a matter of law, our review is plenary and we must decide whether the trial court's conclusions are legally and logically correct and find support in the facts that appear in the record." (Citation omitted; internal quotation marks omitted.) Alexander v. Vernon, 101 Conn.App. 477, 482-83, 923 A.2d 748 (2007).

I

On all counts directed against Burke, the court concluded that the plaintiff's causes of action were time barred. Although the plaintiff's claims can be viewed as distinct and separate, our consideration of the first claim regarding the statute of...