Smigelski v. Dubois

• Decision Date: 30 September 2014
• Docket Number: No. 35793.,35793.
• Citation: 153 Conn.App. 186,100 A.3d 954
• Court: Connecticut Court of Appeals
• Parties: Jacek I. SMIGELSKI v. Mark A. DUBOIS, Chief Disciplinary Counsel.

153 Conn.App. 186

100 A.3d 954

Jacek I. SMIGELSKI

v.Mark A. DUBOIS, Chief Disciplinary Counsel.

No. 35793.

Appellate Court of Connecticut.

Argued April 14, 2014.

Decided Sept. 30, 2014.

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).

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

Opinion

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 $45,000 to execute a quitclaim of the property back to the estate. The petitioner eventually assisted the heirs in obtaining a favorable settlement with Bronislawa Kosiorek, paying her $35,000, instead of the $45,000 that she originally demanded, in exchange for a quitclaim deed of the property back to the estate.⁴

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 Practice Book § 2–47, the Statewide Grievance Committee thereafter issued a decision in which it directed disciplinary counsel to file a presentment against the petitioner in the Superior Court. The presentment filed by disciplinary counsel, dated November 28, 2008, charged the petitioner with violating rule 1.5(a) of the Rules of Professional Conduct (2006) by charging a fee that was unreasonable in light of the relevant circumstances and violating rule 1.15(b) of the Rules of Professional Conduct (2006) by distributing funds to himself, as his fee, out of the proceeds of the sale of the property rather than seeking payment from the executor and for refusing to return the proceeds upon demand.

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 rule 1.5(a) of the Rules of Professional Conduct (2006) by charging an unreasonable fee, and accordingly ordered a three month period of suspension from the practice of law.¹⁰ The court also found that the petitioner had violated rule 1.15(b) of the Rules of Professional Conduct (2006) by distributing funds to himself, as his fee, out of the sale proceeds instead of seeking payment from the executor of the estate, and for refusing to return those sums to the estate, as ordered by the Probate Court; see footnote 9 of this opinion; or to place them in escrow as ordered by the presentment court, Pittman, J. Accordingly, the court imposed an additional twelve month suspension from the practice of law.¹¹ On appeal, this court affirmed the trial court's decision. See Disciplinary Counsel v. Smigelski, supra, 124 Conn.App. at 81, 4 A.3d 336.

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] market analysis,” which valued the property at $257,000. The petitioner also alleges that the trial court, in rendering its final decision against the petitioner, also “substantially relie[d]” on the comparative market analysis valuing the property at $257,000.¹³

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...