IN RE PROBATE APPEAL OF CHRISTOPHER KUSMIT ET AL., COADMINISTRATORS (ESTATE OF CONNOR KUSMIT)
December 10, 2018
from the order and decree of the Probate Court for the
district of East Haven-North Haven allocating the
distribution of certain attorney's fees, brought to the
Superior Court in the judicial district of New Haven and
tried to the court, S. Richards, J.; judgment in part for the
defendant Douglas Mahoney, from which the plaintiffs appealed
to this court. Appeal dismissed.Affirmed.
Veilleux, with whom, onthe brief, was Edmund Q. Collier, for
the appellants (plaintiffs).
K. Gunningsmith, with whom, on the brief, was John R.
Horvack, Jr., for the appellee (defendant Douglas Mahoney).
Bright and Moll, Js.
dispute over attorney's fees, the plaintiffs, the
coadministrators of the estate of Connor Kusmit,
appeal from the judgment of the Superior Court rendered in
favor of the defendant Douglas Mahoney. We conclude that
the plaintiffs lack standing to challenge that judgment. We,
therefore, lack subject matter jurisdiction and, accordingly,
dismiss the plaintiffs' appeal.
record reveals the following undisputed facts. On August 29,
2012, Connor Kusmit was riding a bicycle when he was struck
by a vehicle operated by Christina Groumousas. He died as a
result of the collision. On September 20, 2012, the
plaintiffs signed a retainer agreement with the
defendant's law firm, which provided that the law firm
was to represent them, on behalf of the estate, in connection
with their claim for damages ‘‘resulting from an
event which occurred on or about the 29th day of August, 2012
at Clintonville Rd. North Haven.'' The plaintiffs
agreed to pay the defendant's law firm one third of the
gross amount recovered. The defendant subsequently settled a
wrongful death claim against Groumousas for $50, 000, and the
Probate Court approved the settlement on July 16, 2013.
March 28, 2014, Christopher Kusmit called the defendant and
requested a copy of the estate's file. On May 7, 2014,
Attorney John Mills wrote to the defendant to notify him that
he had been retained by the plaintiffs and would be pursuing
an underinsured motorist claim on behalf of the
estate. On May 13, 2014, the defendant filed a
request in the Probate Court, seeking permission to take his
one-third contingency fee of $16, 666 and expenses from the
$50, 000 wrongful death claim settlement, and informed the
Probate Court that he no longer represented the estate. On
July 8, 2014, the Probate Court ordered the disbursement of
$31, 499.08, the amount remaining after the payment of the
defendant's fees and expenses, to the plaintiffs from the
wrongful death claim settlement. On that same date, the
Probate Court also authorized Mills' settlement of the
underinsured motorist claim for $200, 000. Thereafter, the
defendant notified the Probate Court that he was claiming a
portion of the $66, 666.67 in attorney's fees that Mills
sought from the $200, 000 underinsured motorist claim
settlement (disputed fees).
hearing held on May 4, 2015, at which only the defendant
appeared, the Probate Court entered an order allocating $40,
000 of the disputed fees to the defendant and the remaining
$26, 666.67 to Mills, from which the plaintiffs subsequently
appealed to the Superior Court. Following a trial de novo
held on January 20, 2017, the Superior Court awarded the
defendant $40, 000 in fees and ordered Mills, who was holding
the disputed funds, to disburse that amount to the defendant
and return to the estate $26, 666. This appeal followed. On
December 4, 2018, this court, sua sponte, ordered the
following: ‘‘In light of the [plaintiffs']
position that the legal fee in dispute belongs to the Mills
Law Firm, and given that the Mills Law Firm is not a party to
this case, counsel should be prepared to address at argument
how the [plaintiffs are] aggrieved by the decision of the
trial court and why the [plaintiffs have] standing to seek
relief on behalf of a nonparty.''
appeal, the plaintiffs raise a variety of
claims.Before considering the merits of those
claims, we must address the threshold issue of standing. As
our Supreme Court has consistently stated: ‘‘A
threshold inquiry of this court upon every appeal presented
to it is the question of appellate jurisdiction. . . .
Although not raised by any party to this appeal, the issue of
jurisdiction may be examined by this court on its own
motion.'' (Citations omitted.) Kulmacz v.
Kulmacz, 177 Conn. 410, 412, 418 A.2d 76 (1979).
‘‘The right to appeal is purely statutory, and
only an aggrieved party may appeal. . . . General Statutes
§ 52-263, which governs the subject matter jurisdiction
of this court, provides in relevant part that if either party
is aggrieved by the decision of the court or judge upon any
question or questions of law arising in the trial . . . he
may appeal to the court having jurisdiction from the final
judgment of the court or of such judge . . . . A
determination regarding . . . subject matter jurisdiction is
a question of law . . . [and, therefore] our review is
plenary. . . .
is axiomatic that aggrievement is a basic requirement of
standing, just as standing is a fundamental requirement of
jurisdiction. . . . There are two general types of
aggrievement, namely, classical and statutory; either type
will establish standing, and each has its own unique
features. . . . Classical aggrievement requires a two part
showing. First, a party must demonstrate a specific, personal
and legal interest in the subject matter of the
[controversy], as opposed to a general interest that all
members of the community share. . . . Second, the party must
also show that the [alleged conduct] has specially and
injuriously affected that specific personal or legal
interest. . . . Statutory aggrievement exists by legislative
fiat, not by judicial analysis of the particular facts of the
case. In other words, in cases of statutory aggrievement,
particular legislation grants standing to those who claim
injury to an interest protected by that legislation. . . .
Aggrievement is established if there is a possibility, as
distinguished from a certainty, that some legally protected
interest . . . has been adversely affected.''
(Citations omitted; emphasis omitted; footnote omitted;
internal quotation marks omitted.) Trikona Advisers Ltd.
v. Haida Investments Ltd., 318 Conn. 476,
485-86, 122 A.3d 242 (2015).
present case, the plaintiffs do not claim to be statutorily
aggrieved. We, therefore, consider whether they have been
classically aggrieved by the judgment of the Superior Court.
See id., 486. The plaintiffs do not dispute that
they are obligated to pay attorney's fees. At oral
argument before this court, the plaintiffs' counsel
stated that the estate had expected to pay one third of the
$200, 000 underinsured motorist claim settlement in
attorney's fees, i.e., the entirety of the disputed fees.
He also confirmed that, in total, the estate is not paying
any more in attorney's fees than it had originally
contemplated. Further, despite the fact that the
Superior Court ordered Mills to return a portion of the
disputed fees to the estate, at oral argument, the
plaintiffs' attorney asserted that the estate is not
entitled to any portion of the disputed fees. Rather, as they
indicate in their brief, the plaintiffs take the position
that ‘‘the legal fee[s] in dispute belong to
[the] Mills Law Firm, not to the [e]state, '' even
though they acknowledge that the ‘‘Mills Law Firm
is not a party to this case.''
the plaintiffs also recognize that they are obligated to pay
the entirety of the disputed fees, they nevertheless claim
that they are aggrieved by the Superior Court's decision
to allocate the disputed fees to the defendant instead of to
the Mills Law Firm. As clients of the Mills Law Firm, and as
fiduciaries of the funds, the plaintiffs argue that they have
an interest in the allocation of the disputed fees, which
gives them ‘‘a say in the underlying
actions.'' The plaintiffs, however, fail to provide
any legal authority, and we are aware of none, to support
their proposition that administrators of an estate have a
‘‘specific, personal and legal
interest''; (internal quotation marks omitted)
Trikona Advisers Ltd. v.Haida Investments
Ltd., supra, 318 Conn. 485; in how a court allocates the
distribution of attorney's fees when the estate claims no
interest in any portion of those fees. Furthermore, besides
the Superior Court awarding a portion of the disputed fees to
a party not of the plaintiffs' choosing, the plaintiffs
have not shown how they are ‘‘specifically and
injuriously affected''; (internal quotation marks
omitted) id.; by the Superior Court's allocation
of the disputed fees. Moreover, the Superior Court's
judgment, from which the plaintiffs appeal and claim to be
aggrieved, orders that they retain a portion of the ...