Kosiorek v. Smigelski

• Decision Date: 23 October 2012
• Docket Number: No. 32919.,32919.
• Citation: 138 Conn.App. 695,54 A.3d 564
• Court: Connecticut Court of Appeals
• Parties: Stanley KOSIOREK, Executor (Estate of Stanislaw Kosiorek) v. Jacek I. SMIGELSKI.

138 Conn.App. 695

54 A.3d 564

Stanley KOSIOREK, Executor (Estate of Stanislaw Kosiorek)

v.Jacek I. SMIGELSKI.

No. 32919.

Appellate Court of Connecticut.

Argued May 16, 2012.

Decided Oct. 23, 2012.

Jacek I. Smigelski, pro se, New Britain, the appellant-cross appellee (defendant).

William J. Sweeney, Jr., New Britain, for the appellee-cross appellant (plaintiff).

John A. Barbieri, New Britain, for the cross appellee (defendant 122 Main Street Associates, LLC).

DiPENTIMA, C.J., and ALVORD and PELLEGRINO, Js.

DiPENTIMA, C.J.

The self-represented defendant, Jacek I. Smigelski,¹ appeals from the judgment of the trial court rendered in favor of the plaintiff, Stanley Kosiorek, executor of the estate of Stanislaw Kosiorek, following a jury trial.² On appeal, the defendant presents a number of overlapping claims of error that stem primarily from the court's denial of his motion to set aside the verdict and for a directed verdict. The plaintiff filed a cross appeal from the judgment of the court directing a verdict in favor of 122 Main Street Associates, LLC, formerly known as 122 Main Street, LLC (122 Main Street), with respect to the counts of the plaintiff's revised complaint alleging common-law and statutory fraudulent conveyance. We are not persuaded by any of the issues raised in the defendant's appeal and affirm the judgment of the trial court. With respect to the cross appeal, we agree in part with the plaintiff and reverse a portion of the judgment of the trial court.

The jury reasonably could have found the following facts. In May or June, 2004, Stanley Kosiorek spoke with attorney John Matulis regarding a probate matter. His father, Stanislaw Kosiorek, had died ³ and the family home located on Terra Road in Plainville had been transferred to the decedent's second wife, Bronislawa Kosiorek.⁴ The transfer of the property was completed approximately six weeks before his death. Stanley Kosiorek was appointed executor of the decedent's estate on July 12, 2004. Matulis obtained an order from the Probate Court granting the children of Stanislaw Kosiorek authority to assume responsibility for the body and to make arrangements for a wake, funeral and interment. Next, Matulis began investigating whether the Terra Road property had been transferred validly to Bronislawa Kosiorek. Matulis commenced an action on behalf of Kosiorek and his siblings ⁵ against Bronislawa Kosiorek seeking (1) a judgment declaring the deed transferring ownership of the property invalid and (2) a declaratory judgment that the marriage between Stanislaw Kosiorek and Bronislawa Kosiorek was invalid.

The case went to a judicial pretrial, and a court annexed mediation occurred in late 2005 or early 2006. Stanley Kosiorek and his siblings offered $25,000 in exchange for a return of the house to the estate. This offer was rejected, as Bronislawa Kosiorek sought to receive $45,000. On March 21, 2006, Matulis sent a letter to Stanley Kosiorek and his siblings detailing the options following the unsuccessful mediation. In this letter, Matulis stated that Bronislawa Kosiorek would not accept less than $45,000 in exchange for transferring the house to the estate. Ultimately, Matulis made the following recommendation: “It is my belief that if this matter could be settled along the lines recommended by Judge [Richard A.] Robinson and [Bronislawa Kosiorek] be paid no more than $40,000.00 that the settlement would be far and away in the best interests of the family.”

A trial was scheduled to begin in early August, 2006. At some point prior to the trial date, Matulis learned that Stanley Kosiorek had filed an application with the Probate Court seeking permission to sell the house to his son. Matulis informed him that the estate could not sell an asset that it did not own. A few days later, Stanley Kosiorek informed Matulis that he and his siblings had decided to hire a different lawyer. Matulis filed a motion to withdraw his appearance and sent a final bill. For the work completed over a two year time period, Matulis' law firm was paid $7732 by the children of the decedent.

In June, 2006, Stanley Kosiorek hired the defendant to represent the estate in the action against Bronislawa Kosiorek. Stanley Kosiorek signed a fee agreement both in his individual capacity and as executor of the decedent's estate. The fee agreement consisted of two pages; however, Stanley Kosiorek was shown only the second page that he had signed. The first page of the agreement set forth the fee arrangement as follows: “It is agreed that the fee for legal services rendered by [the defendant] 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, [whichever] amount is greater.” Stanley Kosiorek, not having seen the paragraph, believed that the defendant's fee would be calculated on a hourly basis of $250 per hour. The defendantwas paid a retainer of $5000.⁶Stanley Kosiorek obtained the file from Matulis, provided it to the defendant, and informed the defendant of details regarding the unsuccessful mediation.

Prior to trial, the estate and Bronislawa Kosiorek settled the case. In exchange for $35,000, Bronislawa Kosiorek agreed to quitclaim the deed to the property to the estate.⁷ The parties also exchanged mutual general releases.

After the estate became the owner of the property, it entered into a sales agreement with Stanley Kosiorek's son and daughter-in-law. Although they agreed to purchase the property for $170,000, the son and daughter-in-law were unable to obtain a mortgage. To complete this transaction, the estate raised the price of the property to $212,500. Stanley Kosiorek and his siblings agreed to make a gift of equity of $42,500 to facilitate the sale of the property. Following approval of this transaction by the Probate Court, the defendant prepared a deed to transfer the property in exchange for $212,500. At the closing on December 21, 2006, the estate received $155,300.82.

Five days later, Stanley Kosiorek went to the defendant's office and received a disbursement letter. The defendant calculated his fees as follows: the value of the property was $257,000 ⁸ and therefore his fee was one third of that amount, or $85,665.81, plus a probate fee of $1004.99, less a courtesy discount of $14,832.48 and less a retainer of $5000 for a total due to the defendant of $66,838.32. This amount was subtracted from the net proceeds of the closing and paid to the defendant, thus leaving the estate with $88,462.50. Stanley Kosiorek had expected to receive $155,300 and to pay the defendant at a later date.

Stanley Kosiorek left the defendant's office “[s]peechless and stunned ....” He spoke with Kazimierz Kosiorek and then scheduled a meeting with the defendant. The defendant failed to appear at this meeting, and Stanley Kosiorek obtained new counsel. In a letter sent to the defendant, the new attorney, William J. Sweeney, Jr., indicated that he been retained to represent the estate with respect to the lawsuit against Bronislawa Kosiorek as well as any and all matters in the Probate Court. The letter requested the defendant to turn the file over, and advised that there would be claims against the defendant for legal and ethical breaches, namely, settling the lawsuit of the estate without Probate Court approval and charging an unreasonable fee. Finally, the letter requested that the fees retained by the defendant be placed in escrow.

Stanley Kosiorek filed an inventory and accounting in the Probate Court on behalf of the estate. In the administrative expenses, he listed the defendant's fee of $70,833.33. In January, 2007, a hearing was held regarding the defendant's fees. In May, 2007, the Probate Court issued a decree disallowing the defendant's fee, finding it excessive and unreasonable. ⁹The Probate Court determined that the defendant was entitled to a fee of $15,000, plus $1000 for expenses. Accordingly, the Probate Court ordered the defendant to restore $54,833.33 to the estate. No appeal was taken from the decree of the Probate Court.

On July 6, 2007, the plaintiff filed an application for a prejudgment remedy to secure $54,833.33 of the defendant's assets to prevent him from fraudulently transferring or disposing of assets. The court granted this application on December 20, 2007. On December 28, 2007, the plaintiff commenced this action. On September 17, 2008, the plaintiff, pursuant to General Statutes § 52–102, moved to cite in 122 Main Street as a party defendant. The court granted this motion on December 12, 2008.

On October 9, 2009, the plaintiff filed a revised nine count complaint. Specifically, it alleged the following causes of action against the defendant: (1) breach of contract, (2) breach of good faith and fair dealing, (3) unjust enrichment, (4) breach of fiduciary duty, (5) violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a et seq., and (6) civil conversion in violation of General Statutes § 52–564. The plaintiff also alleged two counts against 122 Main Street: (1) fraudulent conveyance and (2) violation of the Uniform Fraudulent Transfer Act, General Statutes § 52–552a et seq. The defendant responded with an answer, special defenses and a counterclaim. With respect to the two counts directed against it, 122 Main Street filed an answer.

Both the defendant and 122 Main Street filed motions for a directed verdict. The court concluded that the plaintiff had failed to present proof required to prevail on the two causes of action relating to 122 Main Street and therefore directed the verdict in its favor. The court reserved judgment on the defendant's motion. The jury returned a verdict in favor of the plaintiff with respect to all five counts. Additionally, the jury found that the plaintiff was entitled to punitive damages and attorney's fees under the CUTPA count, and 10 percent interest as to the civil...