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CODY B. HEISINGER v. WARD FRANK CLEARY ET AL.
(SC 19633)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued September 21—officially released December 20, 2016
Ralph P. Dupont, with whom, on the brief, was Bar-
bara J. Dupont, for the appellant (plaintiff).
James L. Brawley, with whom were Michael R. Keller
and, on the brief, Cristin E. Sheehan, for the appellee
(named defendant).
James R. Fogarty, for the appellee (defendant Ann
Heisinger Dillon).
Opinion
ROGERS, C. J. This case concerns the standard of
care applicable to executors who seek professional
advice to value the assets of an estate for the purpose
of preparing state and federal estate tax returns. The
plaintiff, Cody B. Heisinger, appeals1 from the trial
court’s rendering of summary judgment in favor of the
defendants, Ward Frank Cleary and Ann Heisinger Dil-
lon, after the plaintiff failed to produce an expert wit-
ness on standard of care in his action alleging that
the defendants had breached their fiduciary duties by
overvaluing an estate asset. The plaintiff claims that
the trial court improperly concluded that an expert was
required and that, on the undisputed facts, the court
instead should have rendered summary judgment, as
to liability, in his favor. We agree that an expert witness
was unnecessary but conclude, nevertheless, that the
trial court properly rendered summary judgment in the
defendants’ favor because the undisputed facts demon-
strated conclusively that they could not be held liable
for any errors allegedly committed by the professionals
they had selected and retained. Accordingly, we affirm
the judgment of the trial court.2
The following undisputed facts and procedural his-
tory are relevant to the appeal. The plaintiff is the son
of Frank B. Heisinger (decedent), who died testate on
November 9, 2007. The plaintiff is the decedent’s sole
heir and the only beneficiary of a trust established under
the decedent’s will. Pursuant to the terms of that will,
the defendants are coexecutors of the decedent’s estate.
Dillon is the decedent’s sister, and Cleary is an attorney
with the law firm of Curtis, Brinckerhoff & Barrett, P.C.,
which serves as counsel for the estate and for many
years had provided various legal services to the dece-
dent and his family members. In addition to an extensive
enumerated list of specific powers, the decedent’s will,
which was executed on November 21, 2005, granted
the defendants, as the estate’s executors, ‘‘all powers
conferred on executors and trustees under the Connect-
icut Fiduciar[y] Powers Act [General Statutes § 45a-233
et seq.], as amended, as the same exists on . . . the
date of the execution of [the] [w]ill and all powers
conferred upon executors . . . wherever [they] may
act.’’ Among the specific powers enumerated in the
will was ‘‘to employ attorneys, accountants and other
persons for services or advice.’’
Prior to the events in question, Dillon had no prior
experience acting as a fiduciary. Following the dece-
dent’s death, she met with Cleary, who informed her
that the estate’s most valuable asset was shares of stock
in the F.A. Bartlett Tree Expert Company (Bartlett), a
closely held corporation established by the decedent’s
grandfather, and that the stock needed to be valued,
for estate tax purposes, as of the date of the decedent’s
death. Neither Cleary nor Dillon possessed any training
or expertise in the valuation of corporate stock. Approx-
imately five years prior to the decedent’s death, a trial
court adjudicating the dissolution of the decedent’s
marriage, relying on an appraisal that valued the Bartlett
stock as of September 30, 2001,3 had found that the
stock was worth ‘‘approximately $2,120,000.’’4 About
two months before the decedent’s death, the Bartlett
stock had been valued, for business purposes and with
the decedent’s awareness, by Management Planning,
Inc. (Management), at $4,071,600. Pursuant to Cleary’s
recommendation,5 and with Dillon’s agreement, the
estate hired Management for the purpose of valuing the
stock as of the date of the decedent’s death. Manage-
ment has more than seventy years of experience in
preparing valuations of corporate stock for the pur-
poses of, inter alia, estate tax return preparation. In
deposition testimony, the plaintiff agreed that the defen-
dants had a responsibility to get a date of death
appraisal from a qualified appraisal firm and that Man-
agement was such a firm.
In July, 2008, Management provided the defendants
with an appraisal report that concluded that the value
of the Bartlett stock as of November 9, 2007, was
$4,862,820.6 The increase in the value of the stock from
its previous valuation was attributed to new information
regarding the earnings of Bartlett in the third quarter
of 2007. The July, 2008 appraisal report was signed by
three members of Management’s professional staff7 and
contained a certification that it was prepared in confor-
mity with various professional standards for appraisers.
That same month, Cleary provided a complete copy of
the appraisal report to the plaintiff. In November, 2008,
Cleary sent draft copies of tax documents using the
Management valuation to an attorney who represented
the plaintiff at that time. In early 2009, the defendants
filed state and federal tax returns for the estate using
the Management valuation. From 2008 through 2011,
neither the plaintiff nor any of the three attorneys who
represented him during this period ever informed either
of the defendants that they believed that the Bartlett
stock had been overvalued, provided the defendants
with an alternative appraisal, or requested that an addi-
tional appraisal be conducted. In 2011, the estate satis-
fied its Connecticut tax liability after its counsel
negotiated a substantial reduction in that liability on
the basis that the estate possessed insufficient liquid
assets to pay the entire amount due. For similar reasons,
the estate’s payment of federal taxes was deferred until
2013, when the estate sold some of the stock back to
Bartlett at the per share price included in Management’s
July, 2008 appraisal report.
In August, 2012, the plaintiff brought this action
against the defendants alleging ‘‘maladministration’’ of
the estate. In the operative complaint, the plaintiff
averred that the defendants had breached their fidu-
ciary duties as executors of the decedent’s estate by
‘‘grossly overvaluing’’ the Bartlett stock.8 According to
the complaint, Management’s valuation of $4,862,820
as of the date of the decedent’s death was approxi-
mately $3 million too high,9 which in turn had resulted
in an excessive assessment of estate taxes. More specifi-
cally, the complaint alleged that the defendants had
breached their fiduciary duties by failing: to cause a
correct assessment and payment of estate taxes; to
supervise properly the work of others; and to amend
the purportedly erroneous estate tax returns in a timely
fashion. It averred further that, because of the illiquidity
of the estate’s assets, the plaintiff had been exposed to
the potential for personal liability for the taxes. As to
the standard of care, the plaintiff alleged that the defen-
dants had a duty to manage the decedent’s estate ‘‘with
the care and skill of a prudent business person in the
management of his or her own business affairs,’’ know-
ing that the stock was closely held and unmarketable,
and constituted a large percentage of the estate’s assets.
In answering the plaintiff’s complaint, the defendants
denied that they had breached their fiduciary duties.
Additionally, they each advanced a number of special
defenses, including that of reasonable reliance. Specifi-
cally, the defendants averred that they had engaged
Management, a reputable company experienced in valu-
ing corporate stock, for purposes of valuing the Bartlett
stock, and that they reasonably had relied on the
appraisal provided by Management when they filed the
estate’s federal and state tax returns.
In January, 2015, after substantial discovery had
taken place, both defendants moved for summary judg-
ment arguing, inter alia, that the plaintiff had failed to
produce an expert who would testify as to the relevant
standard of care for a fiduciary acting under the particu-
lar circumstances.10 They contended further that the
plaintiff had produced no evidence that either of the
defendants, by relying on the Management appraisal
report, had committed an act constituting a breach of
fiduciary duties, which, in the defendants’ view, neces-
sarily contemplates acts of fraud, self-dealing, conflict
of interest or something similar.
The plaintiff objected to the defendants’ motions and
responded with his own motion for partial summary
judgment, requesting that the court render judgment in
his favor as to both defendants’ liability. The plaintiff
contended, inter alia, that expert testimony was unnec-
essary to prove a claim of breach of fiduciary duty
and that breaches of fiduciary duty are not limited to
instances of intentional wrongdoing, but rather, can
include more passive behaviors such as ‘‘benign
neglect,’’ ‘‘simple neglect’’ or ‘‘ ‘blind . . . unreason-
able reliance.’ ’’ In the plaintiff’s view, a jury could con-
clude, without the assistance of an expert, that the 2001
appraisal of the Bartlett stock in connection with the
decedent’s divorce proceedings, which employed a
larger discount rate and resulted in a substantially lower
valuation, should have raised a ‘‘red flag’’ for the defen-
dants once they received the higher valuation from Man-
agement in 2008, and that their failure to seek an
additional valuation, given the existence of this ‘‘red
flag’’ and their general familiarity with Bartlett, was a
breach of their fiduciary duties. Moreover, the plaintiff
claimed, the defendants should have sought to amend
the estate’s tax returns on the basis of this knowledge,
because the estate possessed insufficient liquid assets
to pay the taxes calculated pursuant to the Management
valuation, and the defendants subsequently were able
to obtain a reduction in the estate’s state tax liability.
On March 16, 2015, the trial court granted the defen-
dants’ motions for summary judgment. The court dis-
agreed with the defendants that claims of breach of
fiduciary duty necessarily were limited to instances of
intentional wrongdoing such as fraud, self-dealing or
conflict of interest, and, therefore, it denied summary
judgment on this basis. It agreed, however, that expert
testimony was required to establish the applicable stan-
dard of care and to assist the jury in evaluating the
defendants’ actions, namely, their acceptance and use
of Management’s appraisal report in light of the facts
and circumstances known to them at the time, in view
of that standard. Specifically, in the court’s estimation,
expert testimony was necessary to help the jury under-
stand stock valuation concepts, the requirements and
procedures of taxing authorities, and the types of deci-
sion-making necessary in the administration of a size-
able estate and trust. The trial court concluded that the
plaintiff’s failure to produce such expert testimony was
fatal to his claims and, therefore, rendered summary
judgment in favor of the defendants. This appeal
followed.
In his initial brief to this court, the plaintiff claimed
that the trial court improperly rendered summary judg-
ment in favor of the defendants because expert testi-
mony was unnecessary and the undisputed facts
showed, instead, that the plaintiff was entitled to sum-
mary judgment. Specifically, he contended that a lay
standard of care applied to his claims and that a jury
was capable of comprehending the particular breaches
alleged. Moreover, according to the plaintiff, the undis-
puted facts showed definitively that the defendants had
breached their fiduciary duties by accepting and contin-
uing to rely on the Management valuation.11
In response, both defendants contended that there
is no evidence in the record showing that they commit-
ted any breach of fiduciary duty, regardless of whether
they are correct that that cause of action contemplates
fraud, self-dealing, conflict of interest or other similar
behavior, or instead, whether something less egregious
like blind neglect would suffice. Cleary argued addition-
ally that the trial court correctly determined that expert
testimony on the applicable standard of care was neces-
sary because the issues in this case were beyond the
comprehension of a lay juror.
Following oral argument before this court, we
ordered the parties to submit supplemental briefs
addressing the following question: ‘‘Does General Stat-
utes § 45a-234 (19) provide the applicable standard of
care for the fiduciary defendants under the facts of this
case and, if so, how does it impact the resolution of
the motion for summary judgment on appeal?’’ In
response, the plaintiff argued, inter alia, that the statute
cannot aid the defendants because they did not meet
the standard of care recited therein. The defendants,
for their part, agreed that the statutory standard applies
and contended that, on the undisputed evidence, it
shields them from liability, making summary judgment
in their favor proper.
We agree with the plaintiff that he was not required
to produce an expert on standard of care, nor was he
required to prove that the defendants had a conflict of
interest or had engaged in fraud, self-dealing, or other
similar behavior. This is because, given the particular
allegations of breach of fiduciary duty at issue in this
case, the requisite standard of care applicable to the
defendants is supplied by § 45a-234 (19), and further,
that standard is akin to an ordinary negligence standard
that a lay jury is competent to apply without the assis-
tance of an expert. We conclude, nevertheless, that
summary judgment in favor of the defendants remains
proper12 because the undisputed evidence established,
as a matter of law, that the defendants are immune
from liability pursuant to § 45a-234 (19).13
‘‘The standard of review of a trial court’s decision to
grant summary judgment is well established. [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. . . . In deciding a motion for summary judg-
ment, the trial court must view the evidence in the light
most favorable to the nonmoving party. . . . The test
is whether a party would be entitled to a directed verdict
on the same facts.’’ (Citation omitted; internal quotation
marks omitted.) Hoskins v. Titan Value Equities
Group, Inc., 252 Conn. 789, 792, 749 A.2d 1114 (2000).
Moreover, ‘‘[s]ummary judgment in favor of a defendant
is proper when expert testimony is necessary to prove
an essential element of the plaintiff’s case and the plain-
tiff is unable to produce an expert witness to provide
such testimony.’’ Bozelko v. Papastavros, 323 Conn.
275, 282, A.3d (2016). This court’s review of the
trial court’s decision to grant summary judgment in
favor of the defendants is plenary. Id.
As we previously have explained herein, the dece-
dent’s will granted the defendants, as its executors, ‘‘all
powers conferred on executors and trustees under the
Connecticut Fiduciar[y] Powers Act . . . .’’ General
Statutes § 45a-236 provides in relevant part that ‘‘[s]ec-
tions 45a-233 to 45a-236, inclusive, shall be known as
the ‘Fiduciary Powers Act,’’ and that ‘‘[a]ny unqualified
reference thereto by name or words of similar import
shall be deemed to include all the powers listed in
section 45a-234, at the time of signing the will or trust
instrument . . . .’’ Among the powers enumerated in
§ 45a-234 (19) is the power ‘‘[t]o employ and compen-
sate persons deemed by the fiduciary needful to advise
or assist in the proper settlement of the estate or admin-
istration of any trust including, but not limited to: Ser-
vants, agents, accountants, brokers, attorneys-at-law,
attorneys-in-fact, real estate managers, rental agents,
realtors, appraisers, and investment counsel, custodi-
ans and other professional advisors as reasonably may
be required or desired in managing, protecting and
investing the estate or any trusts without liability for
any neglect, omission, misconduct, or default of such
person provided such person was selected and retained
with due care on the part of the fiduciary. . . .’’
(Emphasis added.)
Pursuant to the plain language of § 45a-234 (19), an
executor cannot be held liable for problems arising
from the work of a professional, such as an appraiser,
that the executor has hired to assist with the settlement
of an estate, as long as the executor ‘‘selected and
retained [that professional] with due care . . . .’’ The
phrase ‘‘due care,’’ as typically used in the law, connotes
an ordinary negligence standard. See Steinhaus v.
Steinhaus, 145 Conn. 95, 97, 139 A.2d 55 (1958) (‘‘[f]ail-
ure to exercise due care is negligence’’). When applying
a due or reasonable care standard, a jury considers
whether the defendant has exercised ‘‘the care [that] a
reasonably prudent person would use under the circum-
stances.’’ (Internal quotation marks omitted.) Rawls v.
Progressive Northern Ins. Co., 310 Conn. 768, 776, 83
A.3d 576 (2014); see also Steinhaus v. Steinhaus, supra,
97 (due care is that exercised by ‘‘the ordinarily prudent
person under the circumstances’’); Black’s Law Diction-
ary (6th Ed. 1990) p. 499 (‘‘Due care’’ is defined as
‘‘[j]ust, proper, and sufficient care, so far as the circum-
stances demand; the absence of negligence. . . . That
care which an ordinarily prudent person would have
exercised under the same or similar circumstances.
. . . Due care, reasonable care, and ordinary care are
often used as convertible terms.’’ [Citation omitted;
internal quotation marks omitted.]). The applicable
standard, therefore, contemplates the actions of an ordi-
nary person, and not those of a professional with a
specialized skill set.14 This is consistent with the fact
that, to serve as an executor or administrator, a person
need not necessarily possess any special skills or exper-
tise.15 See General Statutes §§ 45a-290 (a) and 45a-303
(c) (1); see also Farmers’ Loan & Trust Co. of New
York v. Smith, 74 Conn. 625, 626–27, 51 A. 609 (1902)
(Probate Court cannot reject chosen executor unless
selected individual is within class of persons excluded
by statute or common law); Smith’s Appeal from Pro-
bate, 61 Conn. 420, 426, 24 A. 273 (1892) (under common
law, ‘‘all persons might be appointed as executors who
were mentally capable of executing the duties of the
trust, or, as it is otherwise stated, who were capable
of making a will, or were not specially disqualified’’;
accordingly, lack of experience in business affairs is
not disqualifying circumstance).
We conclude, therefore, that expert testimony is not
necessary to assist a jury in its determination of whether
a fiduciary has exercised due care in the circumstances
contemplated by § 45a-234 (19).16 In short, to determine
whether a fiduciary has exercised ‘‘due care’’ in select-
ing and retaining a professional to assist in fulfilling
the responsibilities associated with a trust or an estate,
a jury need not possess an informed understanding of
the technical aspects of the work product or services
provided by that professional. In fact, the necessity of
hiring an expert typically will arise from the fiduciary
lacking such an understanding. Rather, the jury is
charged with determining whether a reasonably pru-
dent person in the circumstances of the fiduciary, know-
ing only what he or she knew or should have known
at the relevant times, would have appreciated that the
selection and retention of the professional at issue
could cause harm to the trust or estate. When, as here,
the fiduciary possesses no expertise in regard to the
task that the professional was hired to perform, he or
she should not be held liable under § 45a-234 (19) unless
there was a deficiency in the professional’s qualifica-
tions or integrity that would be obvious to an ordinary
person, existing at the time the professional was
selected and retained.
The plaintiff’s allegations of breach of fiduciary
against the defendants all stem from their use, for estate
tax return purposes, of the purportedly erroneous valu-
ation of the Bartlett stock that had been prepared by
Management and, therefore, fall squarely within the
purview of § 45a-234 (19).17 The defendants, therefore,
cannot be held liable for any damages flowing from the
alleged overvaluation unless they failed to exercise due
care in selecting and retaining Management. More spe-
cifically, the plaintiff needed to show that there were
deficiencies with Management’s qualifications or integ-
rity that no reasonable person, having ordinary knowl-
edge, would have disregarded. Because this was a
determination that could be made without the assis-
tance of an expert, the trial court improperly granted
summary judgment for the defendants on the basis that
the plaintiff had not produced an expert on standard
of care. We conclude, however, on the undisputed facts,
that a fair and reasonable jury could not have found
that the defendants failed to exercise the care that an
ordinarily prudent person would have exercised under
all of the attendant circumstances. Consequently, the
trial court’s rendering of summary judgment in favor
of the defendants was proper nevertheless.18
The Internal Revenue Service requires, and the par-
ties do not dispute, that for estate tax purposes, the
value of property owned by a decedent is to be deter-
mined at the time of his or her death. See 26 U.S.C.
§ 2031 (a); 26 C.F.R. § 20.2031–1 (b). In the case of stock
lacking a readily discernible market value, that agency’s
regulations direct the preparer of an estate tax return,
when valuing the stock, to consider an extensive list
of factors and to submit ‘‘[c]omplete financial and other
data upon which the valuation is based . . . including
copies of reports of any examinations of the company
made by accountants, engineers, or any technical
experts as of or near the applicable valuation date.’’ 26
C.F.R. § 20.2031–2 (f). The substantial undervaluing of
property in an estate can lead to the imposition of
significant financial penalties. 26 U.S.C. § 6662 (a), (g)
and (h). Unquestionably, therefore, the defendants were
required to seek an updated valuation of the estate’s
Bartlett stock from a professional appraiser that was
experienced in valuing closely held stock for estate
tax purposes. In selecting and retaining Management,
which by all appearances is a well regarded company
with extensive experience in performing that very func-
tion, to conduct the date of death valuation, the defen-
dants most assuredly exercised due care. Indeed,
Management only recently had valued the Bartlett stock
for the company’s business purposes, with no apparent
objection to the results from the decedent. In fact, the
plaintiff conceded, during discovery, that the defen-
dants were required to obtain a current valuation of
Bartlett and that Management possessed the requisite
qualifications to undertake that valuation. There have
never been any allegations that the professionals in
Management’s employ, who produced the valuation at
issue, lack integrity.
The plaintiff now contends, in his supplemental brief,
that the defendants did not truly ‘‘select’’ Management
because, instead of independently choosing their own
appraiser, they used Management, the same company
that Bartlett recently had hired to conduct a similar
appraisal. He claims alternatively that the defendants
did not exercise ‘‘due care’’ in selecting Management
because they did not also consult with the appraiser
who had valued the decedent’s stock in connection with
his divorce proceedings in 2001. We disagree with each
of these contentions. An interpretation of the statutory
language that would disallow the selection of a profes-
sional on the basis advanced by the plaintiff, which is
wholly unrelated to the professional’s qualifications or
integrity, would be absurd. Similarly, requiring a fidu-
ciary to hire a particular, additional professional, when
there is no indication that the chosen professional is
deficient in any way, would be an unduly restrictive
construction of the statutory standard of due care.
The plaintiff also contends that, once the defendants
received Management’s appraisal report, certain ‘‘red
flags’’ should have alerted them that the valuation con-
tained in the report was erroneous and required them
to amend the estate’s federal estate tax return. We dis-
agree. Section 45a-234 (19) absolves a fiduciary of
responsibility for issues that arise regarding a profes-
sional’s work if that professional was selected and
retained with due care. Once that standard is met, the
fiduciary has no further responsibility to second-guess
the work provided by the professional.
We conclude, in sum, that the undisputed evidence
shows that the defendants exercised due care in select-
ing and retaining Management as their appraiser.
Accordingly, § 45a-234 (19) shields the defendants from
liability for any damages resulting from the allegedly
improper valuation in Management’s July, 2008
appraisal report. Summary judgment in their favor
therefore was proper.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The plaintiff appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
2
The plaintiff claims additionally that the trial court improperly refused
to recognize a fiduciary exception to the attorney-client and work product
privileges, thereby shielding certain documents from being disclosed to him
during discovery. We have reviewed the documents in question, which were
submitted to the trial court for an in camera review, and conclude that they
do not contain information material to the issue raised in this case. We
decline, therefore, to address the plaintiff’s additional claim.
3
The appraisal as of September 30, 2001, was commissioned by the dece-
dent’s former wife. The resulting appraisal report provides that the analysis
therein was conducted only for the purpose of valuing the marital estate in
connection with the dissolution proceedings. It provides further that the
report ‘‘should not be used for any other purpose’’ and that the opinion as
to value ‘‘would most likely be different if another valuation date were
used.’’ In a section discussing assumptions and limiting conditions, the report
reiterates that ‘‘[t]he various estimates of value presented [herein] apply to
this valuation only and may not be used out of the context presented herein.’’
4
To account for the stock’s lack of marketability, the appraisers who
conducted the 2001 valuation applied a discount rate of 60 percent.
5
In his deposition, Cleary testified that he was aware that Management
had worked on the earlier appraisal for Bartlett and that he ‘‘knew that
[Management] was good . . . .’’
6
To account for the stock’s lack of marketability, Management’s apprais-
ers applied a discount rate of 35 percent.
7
The most highly ranked individual who signed the report was a senior
vice president of Management who possessed a master’s degree in business
administration from the Wharton School of the University of Pennsylvania,
had more than one decade of experience in valuation, and had appeared
as an expert witness in the United States Tax Court and in other proceedings.
8
The operative complaint contains allegations that arguably can be read
to assert additional causes of action, such as professional negligence in
regard to Cleary. After Dillon filed a request to revise the complaint on the
basis that it alleged three causes of action under a single count, the plaintiff
filed an objection clarifying that he was alleging a single count of breach
of fiduciary duty against both defendants.
9
This allegation apparently was based on the September 30, 2001 valua-
tion, which was $2,742,820 less than Management’s November 9, 2007 val-
uation.
10
Dillon’s January, 2015 motion for summary judgment was a renewal of
a similar motion she had filed in July, 2013, which the trial court, Adams,
J., had denied without prejudice to later renewal. The court denied the July,
2013 motion on the basis of an appraisal report, submitted by the plaintiff
on December 2, 2013, that included a preliminary opinion as to the value
of the Bartlett stock on November 9, 2007. An updated version of that report,
dated December 15, 2014, set the stock’s value at $1,935,000.
Prior to producing the aforementioned reports well after litigation had
commenced, the plaintiff did not provide to the defendants any other alterna-
tive valuation of the Bartlett stock as of the date of the decedent’s death.
The defendants vigorously contested the accuracy of the plaintiff’s after-the-
fact appraisal and the qualifications of the individual who had conducted it.
11
The plaintiff argued additionally that, when a fiduciary relationship
exists, the burden should be on the fiduciary to prove that he or she dealt
fairly with the beneficiary, and furthermore, that the defendants bore the
burden of establishing their special defense of reasonable reliance. We
disagree that this case involves the type of circumstances under which we
have held that the burden shifts to a fiduciary to prove fair dealing, because
there are no allegations that the defendants personally have benefited in
any way from the complained of actions. See Cadle Co. v. D’Addario, 268
Conn. 441, 457, 844 A.2d 836 (2004) (limiting burden shifting framework to
claims involving fraud, self-dealing or conflict of interest); Murphy v.
Wakelee, 247 Conn. 396, 399, 721 A.2d 1181 (1998) (same). Additionally,
although we agree that the burden of proving a special defense rests with
the party alleging it; see DuBose v. Carabetta, 161 Conn. 254, 262, 287
A.2d 357 (1971); see also 1 R. Bollier et al., Stephenson’s Connecticut Civil
Procedure (3d Ed. 1997) § 83 (e), pp. 246–47; the defendants here did not
move for summary judgment on the basis of any of their special defenses,
but rather, because of the lack of evidentiary support for the allegations of
the plaintiff’s complaint.
12
‘‘Where the trial court reaches a correct decision but on [alternative]
grounds, this court has repeatedly sustained the trial court’s action if proper
grounds exist to support it. . . . [W]e . . . may affirm the court’s judgment
on a dispositive [alternative] ground for which there is support in the trial
court record.’’ (Citation omitted; internal quotation marks omitted.) Hoskins
v. Titan Value Equities Group, Inc., 252 Conn. 789, 794, 749 A.2d 1144
(2000); id., 794–95 (affirming summary judgment in favor of defendants on
alternative ground).
13
Because we conclude that § 45a-234 (19) is dispositive of the particular
issue before us, we need not decide whether, under other circumstances,
conduct that falls short of fraud, self-dealing or conflict of interest may
form the basis of a claim for breach of fiduciary duty, nor need we decide
under what circumstances expert testimony might be necessary to prove a
breach of fiduciary duty.
14
At oral argument, the plaintiff disclaimed any contention that a different
standard of care applied to Cleary because he was an attorney. As we
previously have indicated, Cleary possessed no expertise in the valuation
of corporate stock.
15
Rather, in the case of an executor, the chief qualification is the testator’s
trust in the individual or individuals chosen. As we previously have observed,
‘‘[n]omination of a person to act as his executor by one making his will
imports . . . trust and confidence in the particular person so named. Such
nominations with respect to natural persons as [a] matter of common knowl-
edge are inserted in a will because the one executing the will reposes
special reliance upon the individual integrity, sagacity, capacity, good faith,
friendliness and sympathy with testamentary wishes on the part of the
specified person.’’ (Internal quotation marks omitted.) Cadle Co. v. D’Adda-
rio, 268 Conn. 441, 460 n.15, 844 A.2d 836 (2004).
16
In certain cases, ‘‘[e]xpert testimony . . . serves to assist lay people,
such as members of the jury and the presiding judge, to understand the
applicable standard of care and to evaluate the defendant’s actions in light
of that standard. . . . Expert testimony is required when the question
involved goes beyond the field of the ordinary knowledge and experience
of judges or jurors. . . . Typical cases where expert testimony is required
are those that are akin to allegations of professional negligence or malprac-
tice.’’ (Citation omitted; internal quotation marks omitted.) Doe v. Hartford
Roman Catholic Diocesan Corp., 317 Conn. 357, 374, 119 A.3d 462 (2015).
17
We disagree with the plaintiff that § 45a-234 (19) is inapplicable in the
present case because Cleary was the scrivener of the decedent’s will and
there was no proof that the decedent was fully informed of the implications
of the statutory exculpation provision. The statute contains no prohibitions
or extra requirements in this regard, and we will not read any into it. See
DiLieto v. County Obstetrics & Gynecology Group, P.C., 316 Conn. 790,
803, 114 A.3d 1181 (2015).
We further reject the plaintiff’s arguments, raised in his supplemental
brief, that permitting the defendants to prevail on appeal on the basis of
§ 45a-234 (19) is unfair because he did not conduct discovery with reference
to the statute and because the defendants did not plead it as a special
defense. The plaintiff has claimed throughout the proceedings that a lay,
prudent person standard applied, thereby obviating the need for expert
testimony as to the standard of care, and that he properly could prevail on
allegations akin to negligence. Specifically, he challenged the defendants’
conduct in supervising the work of Management and obtaining an assessment
of taxes on the basis of Management’s valuation, claiming that they failed
to act prudently as the circumstances required. Accordingly, it is difficult
to conceive of how the plaintiff would have conducted discovery differently
had he proceeded explicitly pursuant to § 45a-234 (19). In any event, it was
the plaintiff’s responsibility to identify the statutory provision that clearly
governed his claims, and he cannot avoid its application by neglecting to
do so, nor can he be heard to complain of any resulting unfairness. Addition-
ally, the defendants, to date, consistently have denied the plaintiff’s allegation
that Management overvalued the Bartlett stock. It cannot be said, therefore,
that § 45a-234 (19) is being applied as a special defense. See Practice Book
§ 10-50.
18
Although the application of the standard of care to the particular facts
of a case ordinarily is a question of fact, it ‘‘becomes a question of law . . .
when the mind of a fair and reasonable person could reach but one conclu-
sion.’’ Smith v. Leuthner, 156 Conn. 422, 424–25, 242 A.2d 728 (1968); see
also Rawls v. Progressive Northern Ins. Co., supra, 310 Conn. 775–76 (same
standard for directed verdict in negligence action); Whitney v. New York,
New Haven & Hartford Railroad Co., 87 Conn. 623, 633, 89 A. 269 (1914)
(although negligence ordinarily presents factual questions, ‘‘when the undis-
puted evidence is so conclusive as to one of the controlling issues in a case,
the question is one of law and not of fact for the jury.’’); cf. Abrahams v.
Young & Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997) (although
causation normally is question reserved for fact finder, ‘‘the issue becomes
one of law when the mind of a fair and reasonable person could reach only
one conclusion,’’ warranting summary judgment for defendants [internal
quotation marks omitted]).