Barash v. Lembo

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 SUSAN SHAPIRO BARASH, COTRUSTEE, ET AL.
v. BARBARA LEMBO
(SC 20676)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Ecker and Alexander, Js.

Syllabus

The plaintiffs, three siblings who were beneficiaries of an inter vivos trust
established by their father, R, and S, who was one of three cotrustees
of the trust, sought to recover damages from the defendant, another
one of the cotrustees, for the defendant’s alleged breach of her fiduciary
duty. S is the ex-wife of R and the mother of the trust beneficiaries,
whereas the defendant was married to R at the time of his death in
2007. In 2006, R executed a will leaving the residue of his estate to the
trust. At the time of R’s death, R owned a 49 percent interest in certain
commercial real estate development projects, including properties owned
by E Co., M Co., and N Co., which became a part of his estate upon his
death. R’s business partner, F, also held a 49 percent interest in each
of the three companies, and, after R’s death, F served as the sole manager
of each of the companies pursuant to their respective operating agree-
ments. L had served as the sole executor of the estate since 2009. In
2016, S was appointed as the third cotrustee of the trust, joining the
defendant and L, the other two cotrustees. After S was appointed as a
cotrustee, the plaintiffs raised various challenges in the Probate Court
to L’s management of the estate and to certain accountings, and sought
to remove L as executor. Those challenges were predicated on allega-
tions that L had breached his duty of loyalty on the grounds that he
engaged in self-dealing and had a conflict of interest stemming from
his personal and professional relationship with F. The Probate Court,
however, rejected the plaintiffs’ claims and issued various decrees deny-
ing the petition to remove L as executor and approving in part the
challenged accountings. The plaintiffs and L filed separate appeals from
the Probate Court’s decrees, which were consolidated and scheduled
for a trial de novo in the Superior Court. Meanwhile, in their complaint
against the defendant in the present case, the plaintiffs alleged that she
had breached her fiduciary duty as trustee by failing to protect and
collect trust property, to investigate or ask questions about L’s alleged
mismanagement of the estate, and to seek recovery from and hold L
accountable for any damages sustained by the trust as a result of his
misconduct. The plaintiffs relied on three sets of factual circumstances
relating to L’s administration of the estate and F’s management of the
three companies. Specifically, the plaintiffs referred to a 2011 amend-
ment to the operating agreement of E Co., which provided F with an
annual salary for his services as manager retroactive to 2007, a $3 million
loan to E Co. from the proceeds of the sale of assets owned by M Co.
and N Co., and the sale of real property owned by E Co. The plaintiffs
alleged that these transactions were detrimental to the interests of the
trust and that L had ongoing conflicts of interest stemming both from
his personal relationship with F and the legal representation provided
to F by the law firms with which L was associated while administering
the estate. The parties filed separate motions for summary judgment.
The plaintiffs adduced certain evidence, in support of their summary
judgment motion, that L’s actions had benefited F to the detriment of
the trust beneficiaries and relied on the defendant’s own deposition
testimony that she, among other things, had failed to attend any of the
Probate Court hearings pertaining to the estate, did not inquire about
the assets that the trust should have been receiving from the estate,
maintained no records of distributions made to the trust or to the trust
beneficiaries, and took no steps to determine whether L had properly
performed his duties as executor. The trial court, however, granted the
defendant’s motion for summary judgment and rendered judgment for
the defendant, agreeing with her arguments that her duties as a trustee
with respect to the residuary assets of R’s estate had not commenced
because those assets had not yet been conveyed to the trust, and that
 she owed no fiduciary duty to the trust beneficiaries until the estate
settled. On the plaintiffs’ appeal from the trial court’s judgment, held:

1. The Probate Court’s denial of the plaintiffs’ petition to remove L as
executor of R’s estate on the grounds of self-dealing and conflict of
interest did not collaterally estop the plaintiffs from litigating in the
present case the issue of whether the defendant had breached her fidu-
ciary duty to investigate, object to, or otherwise hold L accountable for
his mismanagement of the estate:

Probate Court orders, judgments, and decrees are final judgments for
purposes of collateral estoppel and res judicata, the general rule in
Connecticut is that a pending appeal does not deprive a Probate Court
order, judgment, or decree of finality for purposes of the preclusion
doctrines, and, thus, the Superior Court in the present case ordinarily
would be required to apply the principles of collateral estoppel and res
judicata to the Probate Court’s decrees, even when there is a pending
appeal from those decrees.

In the present case, however, the consolidated appeal from the Probate
Court’s decrees was to take the form of a trial de novo in the Superior
Court pursuant to statute (§ 45a-186), and, although this court had not
previously considered whether a trial de novo in a pending appeal renders
the preclusion doctrines inapplicable, it adopted the rule applied by the
federal courts and endorsed by the Restatement (Second) of Judgments,
pursuant to which the pendency of an appeal ordinarily does not suspend
the preclusive effect of an otherwise final judgment, unless the appeal
is to be conducted as a trial de novo.

Application of the federal rule in the context of prior litigation resulting
in a probate decree that is the subject of a pending de novo appeal
struck the appropriate balance because, when an appeal is conducted
as a trial de novo, the appellant is entitled to relitigate the issues that
were addressed by the Probate Court without regard to the Probate
Court’s factual findings or legal conclusions, and the Superior Court,
sitting as a Probate Court, may admit or preclude evidence, make factual
findings and credibility determinations, and arrive at an ultimate conclu-
sion without according any preclusive effect to the Probate Court’s prior
findings or rulings.

Accordingly, a probate decree that is the subject of a pending de novo
appeal does not contain the necessary attributes of finality to warrant
application of the doctrine of collateral estoppel.

Nonetheless, this court emphasized that trial courts possess significant
and effective means to manage their dockets to minimize the risk of
inconsistent outcomes or other undesirable consequences of potentially
duplicative litigation, and it suggested that, on remand, the trial court
may wish to consider deferring trial pending the outcome of the trial de
novo in the appeal from the decree denying the petition to remove L as
executor, which might ultimately have preclusive effect in the present
case.

2. The trial court incorrectly concluded that there was no genuine issue of
material fact as to whether the defendant had breached her fiduciary
duty to collect and protect trust assets on the ground that she did not
owe the trust beneficiaries such a duty with respect to the residuary
assets that were not yet part of the trust res, and, accordingly, this court
reversed the trial court’s judgment and remanded the case for further
proceedings:

Beginning when the trustee accepts the trusteeship, the trustee owes a
fiduciary duty to administer the trust in the interest of the beneficiaries,
the duty to administer the trust includes a duty to collect and protect
trust property, as well as the associated responsibility of taking reason-
able steps to uncover and redress any breach of duty committed by a
predecessor fiduciary, and, when trust property is held or controlled by
another, the duty to collect and protect trust property may require the
trustee to take reasonable steps to enforce claims held by the trust.

Moreover, the trustee of a testamentary trust has a duty to compel the
executor of an estate to transfer trust property that the executor has a
duty to transfer, or to redress any breach of duty committed by the
executor, these principles apply with equal force when a will contains
 a testamentary disposition for the purpose of adding property to an inter
vivos trust, such as in the present case, and, when an inter vivos trust
is the beneficiary of a will, the trustee has a duty to pursue reasonable
claims on behalf of the trust against the executor.

In the present case, R’s trust, which was amended and restated on the
same day that R executed his will, operated in association with R’s will,
insofar as R’s will expressly granted to L the authority to retain the
estate assets and significant discretion in controlling their operation and
management, the trust, as the residuary beneficiary, was entitled to
whatever remained of the assets under L’s control upon the closing of
the estate, and the defendant had a duty, as trustee, to take reasonable
steps to safeguard and protect the trust’s interest in those assets.

Furthermore, it was of no consequence that the defendant lacked legal
title or any power to take action with respect to the residuary assets
that were in L’s control because, when an executor, such as L, controls
the estate assets while the estate remains open, a trustee has a duty to
take reasonable steps to protect and collect the trust’s interests in the
residuary assets, after appropriate inquiry and investigation, and to pur-
sue a claim against the executor if required by the standard of care
applicable to trustees.

In addition, this court’s review of the record revealed that genuine issues
of material fact existed with respect to the allegations that the defendant
had breached her fiduciary duty to protect and collect the residuary
assets in R’s estate.

Specifically, the allegations in the plaintiffs’ motion for summary judg-
ment, and the evidence that the plaintiffs adduced, established that R’s
estate had been in probate for nearly seventeen years, raised disputed
questions of fact concerning both L’s involvement in the loan to E Co. and
the amendment to E Co.’s operating agreement authorizing a retroactive
salary for F, and demonstrated that L had significant personal and profes-
sional ties to F and that the law firms with which L was associated
received substantial income from their representation of entities in which
F had an interest.

Likewise, a reasonable fact finder could reach different conclusions
about whether L had made prudent business decisions in managing
the estate, consistent with his fiduciary duty as executor, or had made
decisions that benefitted L and F to the detriment of the estate and
the trust.

The plaintiffs also submitted sufficient evidence to establish that material
questions of fact remained as to whether the defendant knew or should
have known of L’s alleged breach of trust, including the deposition
transcripts of the defendant, in which she admitted that she, among
other things, had failed to discuss at any point with her cotrustees what
her duties as trustee included, had failed to attend any Probate Court
proceedings, had not inquired about what assets the trust should be
receiving from the estate, and had signed the amendment to the operating
agreement of E Co. without inquiring about whether the amendment
was in the best interest of the trust.

3. The trial court’s judgment in favor of the defendant could not be affirmed
on the alternative ground that the plaintiffs’ complaint had failed, as a
matter of law, to state a claim for breach of fiduciary duty:

The defendant’s alternative ground for affirmance was premised on her
claim that an allegation of self-dealing is a necessary element of a claim
for breach of a trustee’s fiduciary duty of prudence and that the plaintiffs
did not allege or submit evidence to establish that she had engaged in
self-dealing, but this court disagreed that a claim for breach of a trustee’s
fiduciary duty must include an allegation that the trustee engaged in
self-dealing.

Specifically, this court clarified that, to state a claim of breach of fiduciary
duty against a trustee, a plaintiff must allege the existence of a fiduciary
relationship, giving rise to a duty, breach of that duty, causation, and
damages, and it overruled an Appellate Court case on which the defen-
dant relied, Rendahl v. Peluso (173 Conn. App. 66), to the extent that
that case required an allegation of self-dealing as an element of a claim
of breach of fiduciary duty against a trustee.
 In the present case, the plaintiffs’ complaint sufficiently alleged a claim
of breach of fiduciary duty against the defendant, as trustee, insofar as
the complaint alleged that the defendant owed the plaintiffs a duty of
undivided loyalty and a duty to administer the trust prudently and with
due diligence, that the defendant breached those duties by failing to
protect and collect trust property, to investigate or ask questions about
L’s alleged misconduct, and to seek to hold L accountable for that miscon-
duct, and that, as a result of the defendant’s various alleged breaches
of fiduciary duty, the plaintiffs incurred damages.
Argued February 15—officially released November 7, 2023

Procedural History

Action to recover damages for breach of fiduciary
duty, and for other relief, brought to the Superior Court
in the judicial district of Hartford, where the court,
Moukawsher, J., granted the defendant’s motion for
summary judgment, denied the plaintiffs’ motion for
summary judgment, and rendered judgment thereon,
from which the plaintiffs appealed. Reversed; further
proceedings.
Barbara M. Schellenberg, with whom were Owen T.
Weaver and, on the brief, David B. Zabel, for the appel-
lants (plaintiffs).
Laura Pascale Zaino, with whom was Joseph V.
Meaney, Jr., for the appellee (defendant).
 Opinion

ECKER, J. The primary issue in this appeal is whether
the trustee of an inter vivos trust that is the residuary
beneficiary of the estate of the settlor-decedent has a
duty to protect and collect assets that have not yet been
transferred to the trust. After providing for the payment
of debts and taxes and setting forth a number of specific
bequests, the will of the decedent, Richard Ripps, who
died in 2006, bequeathed the residue of his estate to an
amended and restated revocable trust benefiting his
three children, the plaintiffs Jennie R. Ripps, Michael
J. Ripps, and Elizabeth J. Ripps (trust beneficiaries).
The present action and five other consolidated cases1
concern the proper administration of that portion of
the decedent’s residuary estate that has not yet been
distributed to the trust. In particular, the undistributed
assets consist of a 49 percent interest in certain com-
mercial real estate development projects (residuary
assets), including properties owned by Evergreen Walk,
LLC (Evergreen Walk), Northern Hills, LLC (Northern
Hills), and M/S Town Line Associates, LLC (M/S Town
Line Associates) (collectively, commercial assets).2
Approximately seventeen years later, the estate has
not yet settled. In 2018, the trust beneficiaries and their
mother, the plaintiff Susan Shapiro Barash, one of three
cotrustees of the Richard Ripps Amended and Restated
Revocable Trust Dated February 8, 2008, filed this
action in the Superior Court, alleging that the defendant
and cotrustee, Barbara Lembo, breached her fiduciary
duty as trustee by failing to protect and collect trust
property, to investigate or ask questions regarding the
alleged misconduct of the executor of the estate, Lau-
rence P. Rubinow,3 and to seek recovery from and hold
Rubinow accountable for any damages sustained by the
trust as a result of the alleged misconduct. The plaintiffs
sought damages and the removal of the defendant as
cotrustee. The trial court rendered judgment in favor
of the defendant, who was the decedent’s widow, on
the basis of its conclusion that the defendant, as a
trustee, had no duty, prior to the distribution of the
residuary assets, to take any action against Rubinow
with respect to those assets—including investigating,
questioning or monitoring Rubinow’s administration of
the estate, or, as the trial court stated, to ‘‘[s]hap[e]’’
or ‘‘gather’’ the property that has not yet poured over
into the trust.
We agree with the plaintiffs that the trial court incor-
rectly concluded that, as a matter of law, no material
issue of fact remained as to whether the defendant
owed the trust beneficiaries a duty to collect and protect
the prospective trust property in the residuary estate.
We also conclude that the complaint sufficiently alleges
a cause of action against the defendant for breach of
her fiduciary duty as trustee. Accordingly, we reverse
the judgment of the trial court.
 The record reflects the following facts relevant to
this appeal. Almost one year before his death, in Febru-
ary, 2006, the decedent executed his will, which left
the residue of his estate to the amended and restated
revocable trust benefiting his three children as trust
beneficiaries. The will and the trust were executed on
the same day. During his lifetime, the decedent served
as the sole trustee. After his death, Rubinow, the defen-
dant, and Edwin Silverstone began serving as successor
cotrustees. The decedent’s will named Rubinow and
Silverstone as coexecutors. Silverstone resigned as
coexecutor and cotrustee in 2009, and Barash was
appointed as the third cotrustee in 2016. Since 2009,
Rubinow has served as the sole executor of the estate. It
is undisputed that the trust beneficiaries have received
$976,600 in distributions from the trust.
Upon the decedent’s death, the initial total gross
value of the estate was $12,897,768. Included in that
estate was his 49 percent interest in the commercial
assets. The decedent’s business partner, John Fin-
guerra, retained a 49 percent interest in each of the
commercial assets and, following the decedent’s death,
served as the sole manager of each of those entities
pursuant to their respective operating agreements.4
In their complaint, the plaintiffs relied on three sets of
factual circumstances relating to Finguerra’s management
of the commercial assets and Rubinow’s administration
of the estate to support their allegation that the defen-
dant had breached her fiduciary duty to investigate,
to ask questions, to seek recovery of damages from
Rubinow, or otherwise to hold him accountable for his
management of the estate. First, in 2011, Evergreen
Walk’s operating agreement was amended to provide
Finguerra with an annual salary of $175,000 for his
services as manager, retroactive to January, 2007—con-
trary and detrimental, the plaintiffs claim, to the inter-
ests of the trust. The plaintiffs allege that the defendant
signed the amendment upon the request of Rubinow
and Finguerra without first reviewing the operating
agreements of the commercial assets or otherwise mak-
ing an independent determination whether it would be
in the best interest of the trust to do so. Second, the
plaintiffs complain about a loan of $3 million to Ever-
green Walk from the proceeds of the sale of assets
owned by M/S Town Line Associates and Northern Hills.
The plaintiffs contend that Rubinow instead was obli-
gated to convey those proceeds to the trust. Lastly,
the plaintiffs support their claims of wrongdoing by
reference to the 2014 sale of a real estate parcel owned
by Evergreen Walk. The plaintiffs allege that, despite
Rubinow’s initial representations that the estate would
receive more than $2 million as a result of the sale,
which would then be distributed to the trust, the estate
received only $490,000 following the sale.
In addition to these three particular transactions, the
plaintiffs allege that Rubinow had ongoing conflicts of
interest—stemming both from his personal friendship
with Finguerra and the legal representation provided
to Finguerra by the law firms with which Rubinow
has been associated during the administration of the
estate—that triggered the defendant’s duty on behalf
of the trust to investigate, object or seek to recover
from Rubinow any resulting damages.
The parties filed separate motions for summary judg-
ment. In support of their motion, the plaintiffs produced
evidence of Rubinow’s accountings, demonstrating that,
although the trust beneficiaries have received a total
of $976,600 in distributions, Rubinow and his present
and former law firms have received more than $1.8
million in fees. Additionally, to establish that Rubinow
took actions that benefitted Finguerra, to the detriment
of the trust beneficiaries, the plaintiffs adduced evi-
dence that Rubinow had assisted in facilitating the
approval of a 2011 amendment of Evergreen Walk’s
operating agreement, which authorized the payment of
a salary to Finguerra for his services as manager of
Evergreen Walk, retroactive to January, 2007, allegedly
depriving the trust of additional funds. The plaintiffs
argued that the retroactive amendment violated § 5.5
of the original 2006 operating agreement of Evergreen
Walk, which provided in relevant part: ‘‘No [m]anager
shall receive any compensation for his services as a
[m]anager of the [c]ompany.’’ They also claimed wrong-
doing in connection with the $3 million loan to Ever-
green Walk from the proceeds of the sales of the properties
owned by Northern Hills and M/S Town Line Associates.
They produced communications in support of their
claim that Rubinow advised Finguerra to make the loan
so that Evergreen Walk could repay bank loans that
had been personally guaranteed by Finguerra, thereby
serving Finguerra’s financial interests rather than
directing the sale proceeds to the estate for distribution
to the trust.
The plaintiffs also submitted the deposition testi-
mony of the defendant in support of their allegations
that she had breached her fiduciary duty, relying on the
defendant’s admissions that she, among other things,
failed to attend any of the Probate Court hearings per-
taining to the estate, never inquired regarding the assets
that the trust should be receiving from the estate, kept
no records of distributions made to the trust or to the
trust beneficiaries, never made any inquiries regarding
Northern Hills or M/S Town Line Associates, signed the
amendment to the Evergreen Walk operating agreement
authorizing compensation for Finguerra, did not discuss
the amendment with the trust beneficiaries, and never
took steps to determine whether Rubinow had properly
performed his duties as executor of the estate.
In arguing for summary judgment in her favor, the
defendant primarily relied on the fact that none of the
three commercial assets in the decedent’s estate had
been conveyed to the trust. Because the three commer-
cial assets are not part of the trust res, the defendant
argued, and because the trust is currently unfunded,
her duties as a trustee will not arise until the estate
settles and its residue is conveyed to the trust.5
The trial court granted the defendant’s motion for
summary judgment, concluding that the defendant’s
duties as a trustee with respect to the residuary assets
in the estate had not yet commenced.6 The court relied
on the decision of the Appellate Court in Warner v.
Merchants Bank & Trust Co., 2 Conn. App. 729, 732,
483 A.2d 1107 (1984), for the proposition that, when
‘‘money flows from an estate into a trust . . . ‘[t]he
duties of a trustee are placed [on her] after the settle-
ment of the estate is completed.’ ’’ (Emphasis in origi-
nal.) The plaintiffs appealed from the judgment of the
trial court to the Appellate Court, and this court trans-
ferred the appeal to itself pursuant to General Statutes
§ 51-199 (c) and Practice Book § 65-1.
I
We first consider the preclusive effect, if any, of the
May 10, 2018 decree of the Probate Court denying the
plaintiffs’ petition to remove Rubinow as executor of
the estate on the basis of allegations of self-dealing and
conflict of interest. Following oral argument, this court
sua sponte directed the parties to submit supplemental
briefs addressing the following question: ‘‘Does the decree
of the Probate Court dated May 10, 2018, which denied
the petition filed by . . . [the plaintiffs] to remove . . .
Rubinow as executor of the estate, collaterally estop
the plaintiffs in this action from litigating whether the
defendant . . . [had] breached her fiduciary obliga-
tions to ‘investigate, object to, or seek to prevent
[Rubinow’s] conflicts of interest and misconduct’ in
administering the estate? See [General Statutes]
§ 45a-24.’’
The following additional facts are relevant to our
resolution of this issue. Following her appointment as
the third cotrustee in 2016, Barash raised various chal-
lenges in the Probate Court to Rubinow’s management
of the estate, petitioning to remove him as executor
and challenging both the fourth interim and final
accountings. All three challenges were predicated on
the plaintiffs’ claim that Rubinow, in his capacity as
executor, had breached his fiduciary duty of undivided
loyalty to the estate. The plaintiffs relied on many of the
same allegations that they raise in the present action,
alleging that Rubinow had conflicts of interest stem-
ming from his personal and professional relationship
with Finguerra. The plaintiffs argued that those alleged
conflicts of interest led Rubinow to act in the interest
of Finguerra, Rubinow’s law firms, and Rubinow him-
self, to the detriment of the trust.
 The Probate Court rejected the plaintiffs’ claims that
Rubinow had breached his duty of loyalty to the estate
and, by extension, the trust, which at that time was
the only remaining beneficiary of the estate. The court
found no conflict of interest requiring Rubinow’s
removal and no evidence that the estate or trust had
been harmed by Rubinow’s administration of the estate.
To the contrary, the court found that ‘‘the estate ha[d]
clearly benefited from [Rubinow’s] experience, exper-
tise, and service.’’ The court specifically rejected the
plaintiffs’ claim that Rubinow had harmed the estate
by failing to prevent the loan of $3 million to Evergreen
Walk from the proceeds of the sale of assets owned by
M/S Town Line Associates and Northern Hills. The court
first observed that Finguerra, not Rubinow, controlled
the liquidation of M/S Town Line Associates and North-
ern Hills, and the use of the sale proceeds. The court
also found that, after the sales had been completed, ‘‘as
a direct result of [Rubinow’s] influence, approximately
$1 million was distributed to the [trust] beneficiaries
and $2 million to the estate for administrative expenses
and taxes.’’ The court made similar findings in its
decrees partially approving the fourth interim and final
accountings, stating that Rubinow’s performance as
executor had been ‘‘exemplary,’’ that ‘‘[t]he value added
[to the estate] by [Rubinow’s] work [had] been substan-
tial, and [that] the results achieved [had] been impres-
sive.’’
The plaintiffs appealed from the decrees of the Pro-
bate Court denying the petition to remove Rubinow
as executor and approving in part the fourth interim
accounting and final accounting, and Rubinow appealed
from the partial denial of attorney’s fees incurred in
connection with the final accounting. See footnote 1 of
this opinion. All four consolidated appeals from the
Probate Court are scheduled for a trial de novo. The
question is whether, pending appeal of the decree deny-
ing the petition to remove Rubinow as executor, the
Probate Court’s rejection of the allegations against
Rubinow for breach of fiduciary duty as executor oper-
ates in the present case to preclude the plaintiffs from
relitigating essentially the same issues in derivative
form, i.e., against the defendant rather than Rubinow
directly.
There is no doubt that ‘‘Probate Court decrees are
final judgments for purposes of collateral estoppel and
res judicata.’’ Solon v. Slater, 345 Conn. 794, 809, 287
A.3d 574 (2023); see, e.g., Gaynor v. Payne, 261 Conn.
585, 596, 804 A.2d 170 (2002) (res judicata); Heussner
v. Day, Berry & Howard, LLP, 94 Conn. App. 569, 576,
893 A.2d 486 (collateral estoppel), cert. denied, 278
Conn. 912, 899 A.2d 38 (2006). Because a prior judgment
in another case maintains its preclusive effect even
pending appeal of that judgment,7 the Superior Court
in the present case ordinarily would be required to
apply the principles of collateral estoppel to the Probate
Court’s decrees and orders rejecting the claims of
wrongdoing by Rubinow, notwithstanding the pending
appeals from those orders. Prior decisions of both this
court and the Appellate Court consistently have held
that a pending appeal does not deprive a Probate Court
order, judgment, or decree of finality for purposes of
res judicata and collateral estoppel. To the contrary,
we have observed that ‘‘the mere taking of an appeal
from a probate decree does not in and of itself vacate
or suspend the decree. . . . [T]he probate decree
appealed from continues ‘in full force’ until the appel-
late tribunal otherwise determines. . . . But once the
appellate tribunal, i.e., the Superior Court, otherwise
determines and either modifies or sets aside the decree
of the Probate Court, the probate decree is superseded.’’
(Citations omitted.) Kerin v. Stangle, 209 Conn. 260,
265, 550 A.2d 1069 (1988); see also Kochuk v. Labaha,
126 Conn. 324, 329, 10 A.2d 755 (1940); Silverstein v.
Laschever, 113 Conn. App. 404, 414, 970 A.2d 123 (2009).
This is the general rule. But a complication arises in a
case, like this one, in which the underlying proceedings
resulting in the probate order, judgment, or decree were
not held on the record, because the appeal in such a
case takes the form of a trial de novo in the Superior
Court.8 See, e.g., Kerin v. Stangle, supra, 209 Conn. 264
(‘‘[t]he function of the Superior Court in appeals from
a Probate Court is to take jurisdiction of the order or
decree appealed from and to try that issue de novo’’).
This court has not previously considered whether the
requirement of a trial de novo in a pending appeal from
an order, judgment, or decree of the Probate Court
renders inapplicable the doctrines of res judicata and
collateral estoppel.9
The rule applied in federal courts is that an appeal
that is conducted as a trial de novo suspends the preclu-
sive effect of the underlying judgment. See, e.g., In re
Parmalat Securities Litigation, 493 F. Supp. 2d 723,
737 (S.D.N.Y. 2007) (‘‘Courts long have held that the
pendency of an appeal ordinarily does not suspend the
preclusive effect of an otherwise final judgment. But
there is an exception for situations in which the appeal
actually involves a trial de novo.’’ (Footnote omitted.)),
aff’d sub nom. Bondi v. Capital & Finance Asset Man-
agement S.A., 535 F.3d 87 (2d Cir. 2008); see also 18A
C. Wright et al., Federal Practice and Procedure (2d
Ed. 2002) § 4433, pp. 78–79 and n.11 (citing Deposit
Bank of Frankfort v. Board of Councilmen, 191 U.S.
499, 24 S. Ct. 154, 48 L. Ed. 276 (1903), for rule that ‘‘a
final judgment retains all of its res judicata consequences
pending decision of the appeal, apart from the virtually
nonexistent situation in which the ‘appeal’ actually
involves a full trial de novo’’). This is also the approach
endorsed in the Restatement (Second) of Judgments.
See 1 Restatement (Second), Judgments § 13, comment
(f), p. 135 (1982) (‘‘[t]he better view is that a judgment
otherwise final remains so despite the taking of an
appeal unless what is called an appeal actually consists
of a trial de novo’’).
The limitation of the preclusion doctrines to final
judgments is grounded in the ‘‘[commonsense] point
that such conclusive [carry over] effect should not be
accorded a judgment [that] is considered merely tenta-
tive in the very action in which it was rendered.’’ Id.,
comment (a), p. 132. The finality requirement, like a
number of other doctrinal limitations in this area, is
intended to ensure that the preclusive effect of prior
litigation is no broader than necessary to serve the
fundamental purposes underlying res judicata and col-
lateral estoppel—preventing or minimizing repetitive
litigation, inconsistent judgments, and vexatious litiga-
tion. See, e.g., Cumberland Farms, Inc. v. Groton, 262
Conn. 45, 58–60, 808 A.2d 1107 (2002). This line drawing
exercise ultimately involves a judgment call based on
a multitude of considerations that will determine, in the
final analysis, whether the demands of efficiency, fair-
ness and public policy weigh for or against issue or
claim preclusion under the circumstances. See id., 58–59
(observing that ‘‘the [common-law] doctrine of collat-
eral estoppel is neither statutorily nor constitutionally
mandated’’ but, ‘‘rather, is a judicially created rule of
reason’’). As Judge Henry J. Friendly observed, ‘‘ ‘[f]inal-
ity’ in the context here relevant may mean little more
than that the litigation of a particular issue has reached
such a stage that a court sees no really good reason
for permitting it to be litigated again.’’ Lummus Co. v.
Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d
Cir. 1961), cert. denied sub nom. Dawson v. Lummus
Co., 368 U.S. 986, 82 S. Ct. 601, 7 L. Ed. 2d 524 (1962).
The question we must resolve is where to draw the
line for purposes of effectuating these doctrinal objec-
tives in the context of prior litigation resulting in a
probate decree that is the subject of a pending de novo
appeal. We think that the rule articulated in the federal
cases and commended in the commentary to the Restate-
ment (Second) of Judgments—giving preclusive effect
to judgments during the pendency of an appeal unless
the appeal requires a trial de novo—strikes the appro-
priate balance.
Our reasons for adopting this approach are straight-
forward. It is well settled in Connecticut that the mere
taking of an appeal generally is not sufficient to deprive
a judgment of finality for purposes of the preclusion
doctrines. ‘‘The fact that the judgment was appealed
from makes no difference, because a party cannot liti-
gate in a second action matters already concluded in
a prior one. If the judgment appealed from is sustained,
there is an end to the matter. If error is found and a
new trial ordered, the party has his opportunity to retry
the issues in the first action.’’ Salem Park, Inc. v. Salem,
149 Conn. 141, 144, 176 A.2d 571 (1961). In contrast to
a typical appeal, however, when an appeal requires a
trial de novo pursuant to General Statutes § 45a-186,
the appellant is entitled to relitigate the issues that were
addressed by the Probate Court without regard to the
factual findings or legal conclusions there obtained.
This means that ‘‘[a]n appeal from probate is not so
much an ‘appeal’ as a trial de novo with the Superior
Court sitting as a Probate Court and restricted by a Probate
Court’s jurisdictional limitations. . . . Although the
Superior Court may not consider events transpiring
after the Probate Court hearing; Satti v. Rago, 186 Conn.
360, 369, 441 A.2d 615 (1982); it may receive evidence
that could have been offered in the Probate Court,
whether or not it actually was offered.’’ (Citations omit-
ted.) Gardner v. Balboni, 218 Conn. 220, 225, 588 A.2d
634 (1991). In conducting a de novo trial in an appeal
from a judgment, order, or decree of the Probate Court,
the Superior Court possesses the same ‘‘discretionary
power’’ as that exercised by the Probate Court, which
the Superior Court must exercise in arriving at ‘‘an
independent determination, without regard to the result
reached by the [P]robate [C]ourt.’’ Prince v. Sheffield,
158 Conn. 286, 298, 299, 259 A.2d 621 (1969). ‘‘[A]fter
consideration of all evidence presented on the appeal
[that] would have been admissible in the [P]robate
[C]ourt, the [S]uperior [C]ourt should exercise the same
power of judgment [that] the [P]robate [C]ourt pos-
sessed and decide the appeal as an original proposition
unfettered by, and ignoring, the result reached in the
[P]robate [C]ourt.’’ (Emphasis added.) Id., 298. Because
the Superior Court, sitting as a Probate Court, will admit
or preclude evidence, make factual findings, including
credibility findings, and arrive at its ultimate conclusion
without according any preclusive effect to the Probate
Court’s prior findings or rulings, we cannot say that the
Probate Court decree contains the necessary attributes
of finality to warrant application of collateral estoppel.10
Finally, we emphasize that, even without the absolute
bar provided by the preclusion doctrines, trial courts
possess significant and effective means to manage their
dockets in order to minimize the risk of inconsistent
outcomes or other undesirable consequences of poten-
tially duplicative litigation in this context. In the present
matter, for example, the trial court is managing six
consolidated cases relating to various aspects of the
same underlying dispute. On remand, the court may
wish to consider deferring trial of the present case
pending the outcome in the de novo appeal of the May
10, 2018 decree denying the petition to remove Rubinow.
A judgment in that appeal may indeed have preclusive
effect in the present case.11 Trial management decisions
of this nature are best left to the trial court, which is
in the optimal position to assess the relevant considera-
tions and to chart a course most conducive to fair and
efficient adjudication. See 1 Restatement (Second), supra,
§ 13, comment (f), p. 135 (‘‘The pendency of a motion
for [a] new trial or to set aside a judgment, or of an
appeal from a judgment, is relevant in deciding whether
the question of preclusion should be presently decided
in the second action. It may be appropriate to postpone
decision of that question until the proceedings
addressed to the judgment are concluded.’’); see also
General Statutes § 45a-186 (j) (‘‘[a] motion for a stay
may be made to the Probate Court or the Superior
Court’’).
Consistent with the foregoing principles, we adopt
the federal rule and conclude that the requirement of
a trial de novo in the pending, consolidated appeals
strips the Probate Court’s May 10, 2018 decree of preclu-
sive effect. A decree that carries no force on appeal
should not be accorded outcome determinative, preclu-
sive effect in different litigation while that appeal is
pending.
II
The gravamen of the plaintiffs’ claim in the present
case is that the defendant breached a fiduciary duty
owed to the trust beneficiaries to protect and collect
assets that are not yet part of the trust res but that
are to be distributed to the trust from the decedent’s
residuary estate when the estate settles. The trial court
determined that, until the estate is settled, no such duty
exists with respect to residuary assets that have not
been distributed out of the estate.
The existence of a fiduciary duty presents a question
of law subject to de novo review. See Iacurci v. Sax,
313 Conn. 786, 795–97, 99 A.3d 1145 (2014) (rejecting
plaintiff’s claim that existence of fiduciary duty pre-
sented question of fact).
It is a fundamental principle of trust law that a trustee
is a fiduciary obligated to act in the best interest of the
trust beneficiaries. See, e.g., General Statutes § 45a-199
(‘‘[a]s used in sections 45a-186c, 45a-202 to 45a-208,
inclusive, and 45a-242 to 45a-244, inclusive, unless other
wise defined or unless otherwise required by the con-
text, ‘fiduciary’ includes an executor, administrator,
trustee, conservator or guardian’’); National Labor Rela-
tions Board v. Amax Coal Co., 453 U.S. 322, 330, 101
S. Ct. 2789, 69 L. Ed. 2d 672 (1981) (referring to trustees’
‘‘traditional fiduciary duties’’); Ramsdell v. Union Trust
Co., 202 Conn. 57, 70, 519 A.2d 1185 (1987) (discussing
trustees’ fiduciary duties); 3 Restatement (Third),
Trusts § 70 and comment (a), p. 6 (2007) (providing
that trustee is subject to fiduciary duties set forth in
Restatement (Third) of Trusts, including duties set forth
in chapter 15 thereof, such as duties of prudence, loy-
alty, and impartiality).
A trustee owes a fiduciary duty to administer the
trust in the interest of the beneficiaries, and that duty
commences when the trustee accepts the trusteeship.
See, e.g., Phillips v. Moeller, 148 Conn. 361, 372, 170
A.2d 897 (1961) (acknowledging ‘‘the [trustee’s] duty
. . . to administer the trust solely in the interest of the
beneficiaries’’); see also 3 Restatement (Third), supra,
§ 76, comment (a), p. 68 (‘‘[o]nce having accepted the
office . . . a trustee has a duty to administer the trust
as long as he or she continues to serve as trustee’’).
The trustee’s administration of the trust must comport
with her duties of loyalty and prudence. See General
Statutes § 45a-499bbb (a) (‘‘[a] trustee shall administer
trust assets solely in the interests of the beneficiaries
consistent with the settlor’s intent’’); General Statutes
§ 45a-499ddd (‘‘A trustee shall administer the trust as
a prudent person would, by considering the purposes,
terms, distributional requirements and other circum-
stances of the trust. In satisfying this standard, the
trustee shall exercise reasonable care, skill and cau-
tion.’’);12 3 Restatement (Third), supra, § 77, p. 81 (‘‘(1)
The trustee has a duty to administer the trust as a
prudent person would, in light of the purposes, terms,
and other circumstances of the trust. (2) The duty of
prudence requires the exercise of reasonable care, skill,
and caution.’’); 3 Restatement (Third), supra, § 78 (1),
p. 93 (‘‘[e]xcept as otherwise provided in the terms of
the trust, a trustee has a duty to administer the trust
solely in the interest of the beneficiaries’’).
As part of the duty to administer the trust, the trustee
has a duty to ‘‘[collect] and [protect] trust property
. . . .’’ 3 Restatement (Third), supra, § 76 (2) (b), p. 68;
see, e.g., Tatoian v. Tyler, 194 Conn. App. 1, 37, 220
A.3d 802 (2019) (‘‘One of the fundamental common-law
duties of a trustee is to preserve and maintain trust
assets. A trustee has the right and duty to safeguard,
preserve, or protect the trust assets and the safety of the
principal.’’ (Internal quotation marks omitted.)), cert.
denied, 334 Conn. 919, 222 A.3d 513 (2020); see also,
e.g., Terry v. Conlan, 131 Cal. App. 4th 1445, 1461,
33 Cal. Rptr. 3d 603 (2005) (trustee’s duties include
collecting and protecting trust property).
When trust property is held or controlled by another,
the duty to collect and to protect trust property may
require a trustee to take ‘‘reasonable steps to enforce
or realize on . . . claims held by the trust . . . .’’ 3
Restatement (Third), supra, § 76, comment (d), p. 71;
see Tatoian v. Tyler, supra, 194 Conn. App. 37 (‘‘A
trustee must enforce and collect choses in action,
claims, debts, and demands belonging to the estate.
. . . [A] trustee must take reasonable steps to enforce
claims of the trust and to defend claims against the
trust.’’ (Citation omitted; emphasis omitted; internal
quotation marks omitted.)). ‘‘[T]he trustee ordinarily
has the associated responsibility of taking reasonable
steps to uncover and redress any breach of duty com-
mitted by a predecessor fiduciary.’’ 3 Restatement
(Third), supra, § 76, comment (d), pp. 70–71.13
The duty to collect or protect property in the hands
of the executor of an estate appears to arise most com-
monly in the context of testamentary trusts. Although
this court has not had the opportunity to address the
issue, a trustee of a testamentary trust has a duty to
compel the executors of an estate to transfer trust prop-
erty that they have a ‘‘duty to transfer, or to redress any
breach of duty committed by them.’’ (Internal quotation
marks omitted.) In re Estate of Erlien, 190 Wis. 2d 400,
416, 527 N.W.2d 389 (1994); see 1 Restatement (Second),
Trusts § 177, comment (a), p. 383 (1959) (‘‘[t]he trustee
is under a duty to the beneficiary to take reasonable
steps to enforce any claim [that] he holds as trustee
against predecessor trustees . . . or in the case of a
testamentary trust against the executors of the estate,
to compel them to transfer to him as trustee property
[that] they are under a duty to transfer, or to redress
any breach of duty committed by them’’ (citation omit-
ted; emphasis added)); see also, e.g., Bullis v. DuPage
Trust Co., 72 Ill. App. 3d 927, 933, 391 N.E.2d 227 (1979)
(trustee was under duty ‘‘to take reasonable steps’’ to
enforce claims against executor, even when trustee and
executor roles were filled by same trust company);
American Fidelity Co. v. Barnard, 104 N.H. 146, 152–
53, 181 A.2d 628 (1962) (‘‘The trustee is under a duty
to take such steps as are reasonable to secure control
of the trust property and to keep control of it. Thus in
the case of a testamentary trust [in which] one person
is named as executor and another as trustee, it is the
duty of the trustee to obtain possession of the trust
property from the executor, and if he does not within
a reasonable time take such steps as are reasonable to
obtain possession of the property and the executor
thereafter makes away with the property, the trustee
is liable to the beneficiaries for the loss.’’ (Internal quo-
tation marks omitted.)).
The obligation of the testamentary trustee to take
reasonable steps to obtain property improperly detained
by an executor is merely a specific application of the
more general principle that a trustee has a duty to
protect the rights and interests of the beneficiaries of
the trust. See, e.g., In re Herrmann, 127 App. Div. 2d
999, 1000, 512 N.Y.S.2d 942 (1987); see also 3 A. Scott
et al., Scott and Ascher on Trusts (5th Ed. 2007) § 17.9,
p. 1222 (‘‘a trustee who fails to take reasonable steps
to enforce a claim against the executor or a previous
trustee, to compel them to turn over property, or to
redress a breach of trust, is ordinarily liable for any
resulting loss’’ (emphasis added)).
This principle applies with equal force when a will
contains a testamentary disposition for the purpose of
adding property to an inter vivos trust, such as in the
present case. The precise manner in which the trust is
created—by will or inter vivos—does not determine
whether the trustee has a duty to protect and collect
estate assets in which the trust holds a beneficial inter-
est. When an inter vivos trust is a beneficiary of a will,
the trustee has a duty to pursue reasonable claims on
behalf of the trust against the executor of the estate.
See 3 A. Scott et al., supra, § 17.7, pp. 1212–15; id., § 17.9,
pp. 1220–24.
The point is illustrated by Pepper v. Zions First
National Bank, N.A., 801 P.2d 144 (Utah 1990), in which
the beneficiaries of an inter vivos trust that was the
sole beneficiary of the estate claimed that the defendant
bank, which served as both executor of the estate and
trustee of the trust, had breached its fiduciary duty as
executor by misrepresenting the value of the estate in
quarterly reports. Id., 145–49. The beneficiaries argued
that the bank, in its capacity as trustee, had a fiduciary
duty to object to the closing of the estate and to enforce
a claim against itself in its capacity as executor for any
damages sustained as a result of the executor’s alleged
mismanagement of the estate. Id., 147, 151–52. In revers-
ing the trial court’s granting of summary judgment in
favor of the bank, the Utah Supreme Court recognized:
‘‘The law is settled that a ‘trustee owes a duty to the
beneficiary on taking over property from the executor
to examine the property tendered and see whether it
is that which he ought to receive.’ [G. Bogert & G.
Bogert, The Law of Trusts and Trustees (2d Ed. Rev.
1980) § 583, pp. 358–59]. . . . A trustee has a duty to
enforce claims against an executor as a prior fiduciary
upon the transfer of the assets of the estate to the
trustee. [Comment (a) to § 177 of the] Restatement (Sec-
ond) of Trusts . . . [provides]: ‘The trustee is under a
duty to the beneficiary to take reasonable steps to
enforce any claim [that] he holds as a trustee against
predecessor trustees . . . or in the case of a testamen-
tary trust against the executors of the estate, to compel
them to transfer to him as trustee property [that] they
are under a duty to transfer, or to redress any breach of
duty committed by them.’ ’’ (Citation omitted.) Pepper
v. Zions First National Bank, N.A., supra, 151; see also
In re Kemske, 305 N.W.2d 755, 762 (Minn. 1981) (noting
with approval inter vivos trustee’s concession that,
‘‘generally trustees do have a duty to the beneficiaries
of the trust to pursue any actions [that] the trust rightly
has against a prior trustee or executor for breach of his
fiduciary duties’’ (internal quotation marks omitted)).
These legal principles apply to the trust at issue in
the present case. The trust originally was created as an
inter vivos trust and was amended and restated on the
same day that the decedent’s will was executed. The
two instruments operate hand in glove. The trust is an
integrated part of an overall estate plan that provides
that assets in the residue of the estate will be added to
the principal of the trust. Article IV (A) of the decedent’s
will expressly grants to Rubinow the power to retain
the estate assets and significant discretion in controlling
their operation and management. As the residuary bene-
ficiary, upon the closing of the estate, the trust will be
entitled to whatever remains of the assets currently
under Rubinow’s control. As trustee, the defendant is
duty bound to take reasonable steps to safeguard and
protect the trust’s interest in those assets.
The defendant argues that the trial court properly
relied on Warner v. Merchants Bank & Trust Co., supra,
2 Conn. App. 729, to conclude that she owed no fidu-
ciary duty to the trust beneficiaries until there was
ascertainable property in the trust, which the defendant
takes to mean after the estate has settled. We find War-
ner inapposite. The court in Warner identified the cen-
tral issue on appeal as whether the testamentary trust
in that case had come into existence at all, and the
court concluded that it had not. Id., 732. Its holding
that the defendant trustee owed no duty to the trust
beneficiaries rests on that premise. In the absence of
an existing trust, the court concluded, the trustee had
not accepted the trusteeship. Id., 734. Implicit in the
court’s reasoning was that, because the trust had not
yet come into existence, and, therefore, there was no
acceptance of the trust, the trustee’s duties had not yet
commenced. See id., 732–33. Unlike the trust at issue
in Warner, the trust in the present case undisputedly
exists and has held assets; indeed, the defendant her-
self, as a trustee, has made fourteen distributions to
the beneficiaries totaling $976,600 over the years.14
The defendant also contends that she lacked any
power—and, therefore, any duty—to take action with
respect to the residuary assets because they were in
Rubinow’s control and had not been conveyed by him
to the trust. This argument misses the point. Although
the defendant’s lack of legal title to the residuary assets
obviously rendered her powerless to collect any income
from those assets or to distribute that income to the
trust beneficiaries, these circumstances do not relieve
the trustee of her duty to take reasonable steps to pro-
tect and collect the trust’s interests in the residuary
assets, after appropriate inquiry and investigation, and
then to pursue a claim or other relief against the execu-
tor if required by the standard of care applicable to her
position as trustee. The fact that an executor controls
the estate assets while the estate remains open is the
very circumstance that triggers a trustee’s duty to take
reasonable steps to ensure that the executor exercises
that control in a manner consistent with the interests
of the trust and its beneficiaries. A trustee has powers
coterminous with her duties in this respect.
As we previously explained, a trustee’s fiduciary duty
to administer the trust includes a duty of care, or pru-
dence, which requires her to exercise reasonable care,
skill, and caution in administering the trust. See Phillips
v. Moeller, supra, 148 Conn. 369 (‘‘[i]t is the duty of a
trustee to exercise due diligence in view of the circum-
stances surrounding the administration of the trust . . .
and [the trustee] must do what ordinary prudence
requires in the circumstances’’ (citation omitted)); 3
Restatement (Third), supra, § 77 (1) and (2), p. 81 (‘‘[t]he
trustee has a duty to administer the trust as a prudent
person would,’’ which ‘‘requires the exercise of reason-
able care, skill, and caution’’); see also General Statutes
§ 45a-499ddd (‘‘A trustee shall administer the trust as
a prudent person would, by considering the purposes,
terms, distributional requirements and other circum-
stances of the trust. In satisfying this standard, the
trustee shall exercise reasonable care, skill and cau-
tion.’’). A trustee’s duty of prudence is not limited to
collecting income and making distributions to trust ben-
eficiaries from assets already held by the trust. The
trustee also must exercise due diligence ‘‘to secure pos-
session of all the assets of the trust estate.’’ (Emphasis
added.) McClure v. Middletown Trust Co., 95 Conn.
148, 153, 110 A. 838 (1920); see id., 153–56 (when prede-
cessor trustee misappropriated trust assets, successor
trustee, who did not possess said assets, had duty ‘‘to
exercise due care in the preservation of the trust assets,’’
which included duty to undertake reasonable investiga-
tion).15 Consistent with her duty to exercise due dili-
gence to secure possession of trust assets, it necessarily
follows that a trustee has the duty to take reasonable
steps to determine whether the executor of an estate
of which a trust is a beneficiary is discharging his duties
to act in a manner consistent with the rights and inter-
ests of the trust and its beneficiaries in connection with
assets in which the trust holds a beneficial interest. We
emphasize that the duty to secure possession of trust
assets is not ‘‘absolute’’ but is ‘‘limited to the exercise of
due diligence in the light of the particular circumstances
surrounding the administration of [the] trust.’’16 Id., 153.
A trustee must do ‘‘[w]hat ordinary prudence would
do under these circumstances . . . and need do no
more.’’ Id.
Because the trial court incorrectly concluded that
the defendant had no duty to protect and collect poten-
tial trust assets, such as the undistributed residuary
assets at issue in this case, the court did not consider
whether the plaintiffs adduced sufficient evidence to
survive summary judgment on the issue of the defen-
dant’s alleged breach of her fiduciary duty. Our review
of the record reveals that genuine issues of material fact
exist with respect to the allegations of the defendant’s
breach of fiduciary duty in the present case.
The plaintiffs submitted sufficient evidence to dem-
onstrate that issues of material fact remain as to
whether the defendant had breached her duty to protect
and collect the residuary assets in the decedent’s estate.
The factual assertions in the plaintiffs’ motion for sum-
mary judgment, as supported by the attached exhibits,
establish that the estate has been in probate for nearly
seventeen years and raise disputed questions of fact
concerning Rubinow’s involvement in the $3 million
loan from Northern Hills and M/S Town Line Associates
to Evergreen Walk and in the amendment to Evergreen
Walk’s operating agreement authorizing a salary, retro-
actively, for Finguerra. The plaintiffs’ exhibits also dem-
onstrate that Rubinow had significant personal and pro-
fessional ties to Finguerra and that Rubinow’s law firms
received substantial income—allegedly more than $6.2
million—from their representation of entities in which
Finguerra has an interest. As the trial court in the pres-
ent case observed, ‘‘a reasonable fact finder could go
either way’’ on the pivotal question of whether Rubinow
made prudent business decisions in managing the
estate, consistent with his fiduciary duty as executor,
or made decisions that benefitted Finguerra and him-
self, to the detriment of the estate and the trust.
The plaintiffs also have submitted sufficient evidence
to establish that material questions of fact remain as
to whether the defendant knew or should have known
of the alleged breach by Rubinow. See 1 Restatement
(Second), Trusts, supra, § 223 (2), p. 519 (‘‘[a] trustee
is liable to the beneficiary for breach of trust, if [it] (a)
knows or should know of a situation constituting a
breach of trust committed by [its] predecessor and [it]
improperly permits it to continue; or (b) neglects to
take proper steps to compel the predecessor to deliver
the trust property to [the trustee]; or (c) neglects to
take proper steps to redress a breach of trust committed
by the predecessor’’); see also In re Estate of Hunter,
194 Misc. 2d 364, 368–69, 753 N.Y.S.2d 675 (Sur. 2002)
(applying § 223 of Restatement (Second) of Trusts when
predecessor fiduciary was executor), aff’d, 6 App. Div.
3d 117, 775 N.Y.S.2d 42 (2004), aff’d, 4 N.Y.3d 260, 827
N.E.2d 269 (2005). In support of their motion for sum-
mary judgment, the plaintiffs produced evidence, pri-
marily from the deposition transcripts of the defendant,
that she had failed to discuss at any point with her
cotrustees what her duties as trustee included, failed
to attend any Probate Court proceedings, made no
inquiries regarding what assets the trust should be
receiving from the estate, received a copy of a letter in
2008 informing her that the trust beneficiaries would
not be receiving any further distributions until the reso-
lution of a suit brought by a third party but failed to
make any inquiries regarding the notice of no future
distributions, made no inquiries regarding Northern
Hills or M/S Town Line Associates, despite having
received a payment of her 1 percent interest in the
commercial assets as a result of the sales of those two
assets, never reviewed the operating agreements of
Northern Hills or M/S Town Line Associates, and signed
the amendment to the operating agreement of Ever-
green Walk without inquiring about whether the amend-
ment was in the best interests of the trust.
In light of the evidence submitted by the plaintiffs in
connection with the motions for summary judgment,
we conclude that questions of material fact remain
regarding whether the defendant had breached her duty
to investigate, to make inquiries, to object to Rubinow’s
management of the estate, or to enforce claims against
Rubinow on behalf of the trust.17
III
As an alternative ground for affirming the trial court’s
judgment, the defendant argues that the plaintiffs’ claim
of breach of fiduciary must fail as a matter of law
because an allegation of self-dealing is a necessary ele-
ment of any such claim, and the plaintiffs neither alleged
nor submitted evidence to establish that the defendant
had engaged in self-dealing. We do not agree that a
claim for breach of a trustee’s fiduciary duty is limited
to instances in which the trustee engaged in self-dealing,
and we therefore reject the defendant’s invitation to
affirm the judgment on this alternative ground.
Our review of the legal sufficiency of the plaintiffs’
complaint presents a question of law. See, e.g., Sturm
v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d
859 (2010). ‘‘[T]he failure to include a necessary allega-
tion in a complaint precludes a recovery by the plaintiff
under that complaint . . . .’’ (Internal quotation marks
omitted.) Id. Although an attack on the legal sufficiency
of a claim is normally made via a motion to strike, the
use of a motion for summary judgment for this purpose
‘‘is appropriate when the complaint fails to set forth a
cause of action and the defendant can establish that
the defect could not be cured by repleading.’’ Larobina
v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005).
‘‘[A] plaintiff alleging a breach of fiduciary duty must
show that any damages sustained were proximately
caused by the fiduciary’s breach of his or her fiduciary
duty.’’ Bozelko v. Papastavros, 323 Conn. 275, 283 n.10,
147 A.3d 1023 (2016). A breach of fiduciary duty is a
broad concept encompassing a variety of different
duties. Whether a fiduciary duty exists in any particular
case, and the nature of that duty, is context dependent
and ‘‘fact driven . . . .’’ Iacurci v. Sax, supra, 313 Conn.
796; see id. (‘‘in many cases, the existence of a fiduciary
duty may turn on the unique facts presented in the
record’’) We are presently considering the elements of
a claim as it applies to the duties of a trustee.
The fundamental underlying precept is that a ‘‘trustee
stands in a fiduciary relationship with respect to the
beneficiaries as to all matters within the scope of the
trust relationship, that is, all matters involving the
administration of the trust and its property.’’ 3 Restate-
ment (Third), supra, § 78, comment (a), p. 94. We have
reviewed the manifold aspects of a trustee’s fiduciary
duties in part II of this opinion. Our decisions have
recognized that trustees owe trust beneficiaries a fidu-
ciary duty of loyalty,18 a fiduciary duty of care, or pru-
dence,19 and a fiduciary duty of impartiality.20 The pres-
ent case involves the trustee’s duty of prudence.
The defendant contends that an allegation that a
trustee has breached her duty of prudence, without
more, does not state a legally sufficient claim for breach
of fiduciary duty under Connecticut law. Relying on
language in Rendahl v. Peluso, 173 Conn. App. 66, 162
A.3d 1 (2017), the defendant argues that a plaintiff must
plead and prove, as an essential element of the tort,
that the fiduciary engaged in self-dealing. Her argument
focuses on a statement in Rendahl identifying the fol-
lowing four elements of a claim of breach of fiduciary
duty: ‘‘[1] [t]hat a fiduciary relationship existed [that]
gave rise to . . . a duty of loyalty . . . an obligation
. . . to act in the best [interest] of the plaintiff, and
. . . an obligation . . . to act in good faith in any mat-
ter relating to the plaintiff; [2] [t]hat the defendant
advanced his or her own interests to the detriment of
the plaintiff;21 [3] [t]hat the plaintiff sustained damages;
[and] [4] [t]hat the damages were proximately caused
by the fiduciary’s breach of his or her fiduciary duty.’’
(Emphasis altered; footnote added; internal quotation
marks omitted.) Id., 100, quoting T. Merritt, 16 Connecti-
cut Practice Series: Elements of an Action (2016–17
Ed.) § 8:1, p. 686.22
Regardless of whether Rendahl correctly identified
the elements of a claim for breach of fiduciary duty in
other contexts, such a requirement cannot be reconciled
with the law of trusts.23 As we discussed, the fiduciary
duties of loyalty, prudence, and impartiality imposed
on trustees extend well beyond a prohibition on self-
dealing and are inconsistent with a judicially imposed
limitation that would allow a claim of breach of fidu-
ciary duty only in cases implicating self-dealing or the
duty of loyalty. The duty of prudence, for example,
imposes fiduciary duties pertaining to ‘‘matters relating
to the administration of the trust . . . .’’ 3 Restatement
(Third), supra, § 77, comment (a), p. 82; see Phillips v.
Moeller, supra, 148 Conn. 369 (duty ‘‘to exercise due
diligence’’ in administering trust); see also Gadaire v.
Orchin, 197 F. Supp. 3d 5, 6–7, 11 (D.D.C. 2016) (when
trustee failed to make premium payments on life insur-
ance policy owned by trust, court concluded that,
because beneficiaries’ claim implicated duty of pru-
dence, question was whether trustee’s efforts were rea-
sonable, and explained that ‘‘[i]t is inherent in the trust
relationship . . . that the trustee must make at least
some effort to remain apprised of the status of the
trust’s assets and to protect those assets’’). The duty
of prudence requires a trustee to exercise ‘‘reasonable
care, skill, and caution.’’ 3 Restatement (Third), supra,
§ 77 (2), p. 81; see, e.g., In re Lavery’s Will, 79 N.Y.S.2d
27, 31–32 (Sur. 1948) (trustee’s use of trust funds to
pay tenant’s repair costs implicated duty of prudence,
and question was whether beneficiaries could show
that trustee’s actions were ‘‘without sufficient reason’’),
aff’d, 275 App. Div. 674, 87 N.Y.S.2d 221 (1949). The
breach of this duty, or any other fiduciary duty imposed
on the trustee, is actionable unless precluded by law
or by legally valid prohibition.
 Although our holding is limited to claims of breach
of fiduciary duty against trustees, we find further sup-
port for our conclusion in the law of other states govern-
ing breach of fiduciary duties generally. The substantial
majority of jurisdictions do not limit the cause of action
to claims based on self-dealing or breach of the duty
of loyalty. To the contrary, a cause of action for breach
of fiduciary duty in a majority of jurisdictions requires
the following elements: (1) the existence of a fiduciary
relationship, giving rise to a duty, (2) breach of that
duty, (3) causation, and (4) damages. See, e.g., Mendoza
v. Continental Sales Co., 140 Cal. App. 4th 1395, 1405,
45 Cal. Rptr. 3d 525 (2006) (‘‘[t]he elements of a claim
for breach of fiduciary duty are (1) the existence of a
fiduciary relationship, (2) its breach, and (3) damage
proximately caused by that breach’’); Aller v. Law Office
of Carole C. Schriefer, P.C., 140 P.3d 23, 26 (Colo. App.
2005) (‘‘To prove a claim for breach of fiduciary duty,
it is the plaintiff’s burden to demonstrate, inter alia, that
he or she has incurred damages and that the defendant’s
breach of fiduciary duty was a cause of the damages
sustained. . . . The element of causation is satisfied
when the plaintiff proves that the defendant’s conduct
was a substantial contributing cause of the injury.’’
(Citation omitted.)), cert. denied, Colorado Supreme
Court, Docket No. 05SC653, 2006 WL 1530184 (June 5,
2006); Kahn v. Britt, 330 Ga. App. 377, 382, 765 S.E.2d
446 (2014) (‘‘[e]stablishing a claim for breach of fidu-
ciary duty requires proof of three elements: (1) the
existence of a fiduciary duty; (2) breach of that duty;
and (3) damage proximately caused by the breach’’);
Lawlor v. North American Corp. of Illinois, 983 N.E.2d
414, 433 (Ill. 2012) (‘‘[t]o state a claim for breach of
fiduciary duty, it must be alleged and ultimately proved:
(1) that a fiduciary duty exists; (2) that the fiduciary
duty was breached; and (3) that such breach proxi-
mately caused the injury of which the party com-
plains’’); Dann v. Patten, Docket No. 07-P-1031, 2008 WL
4899193, *1 (Mass. App. November 17, 2008) (decision
without published opinion, 73 Mass. App. 1105, 896
N.E.2d 656) (‘‘[the] essential elements of [a] breach of
fiduciary duty claim are existence of fiduciary duty,
breach, damage, and causation’’); Lundy v. Masson, 260
S.W.3d 482, 501 (Tex. App. 2008) (‘‘[t]he elements of
a breach of fiduciary duty claim are: (1) a fiduciary
relationship between the plaintiff and [the] defendant,
(2) a breach by the defendant of his fiduciary duty to
the plaintiff, and (3) an injury to the plaintiff or benefit
to the defendant as a result of the defendant’s breach’’),
review denied, Texas Supreme Court, Docket No. 08-
0674 (October 24, 2008); see also Kim v. Dongbu Tour &
Travel, Inc., Docket No. 2:12-cv-1136 (WHW), 2012 WL
12903168, *2 (D.N.J. October 9, 2012) (citing McKelvey
v. Pierce, 173 N.J. 26, 56–58, 800 A.2d 840 (2002), in
concluding that, ‘‘[u]nder New Jersey law, the elements
of a breach of fiduciary claim are: (1) the existence of
a fiduciary relationship between the parties; (2) the
breach of the duty imposed by that relationship; and
(3) damages or harm to the plaintiff caused by said
breach’’). But see Wells v. Hurlburt Road Co., LLC,
145 App. Div. 3d 1486, 1487, 43 N.Y.S.3d 637 (2016)
(elements of breach of fiduciary duty claim include ‘‘the
existence of a fiduciary relationship, misconduct by
[the] defendant, and damages directly caused by that
misconduct’’).
We hold that, in order to allege a claim against a
trustee for breach of fiduciary duty, a plaintiff must
allege (1) the existence of a fiduciary relationship, giv-
ing rise to a duty, (2) breach of that duty, (3) causation,
and (4) damages. Under this standard, the plaintiffs’
complaint sufficiently alleges a claim of breach of fidu-
ciary duty against the defendant. The complaint alleges
that the defendant owed the plaintiffs a duty of undi-
vided loyalty and a duty to administer the trust pru-
dently and with due diligence. The complaint further
alleges that the defendant breached those duties by
failing to protect and collect trust property, to investi-
gate or ask questions about the executor’s alleged mis-
conduct, and to seek to hold the executor accountable
for that misconduct. The complaint also claims that, as
a result of the defendant’s various alleged breaches of
her fiduciary duty, the plaintiffs have suffered damages.
These allegations state a legally sufficient claim for
breach of a trustee’s fiduciary duties under Connecti-
cut law.
IV
CONCLUSION
For the foregoing reasons, we conclude that the May
10, 2018 probate decree is not entitled to preclusive
effect, that genuine issues of material fact remain as to
whether the defendant breached her fiduciary duty to
collect and protect trust assets, and that self-dealing is
not an essential element of the tort of breach of fidu-
ciary duty. Because the trial court granted the defen-
dant’s motion for summary judgment on the basis of
its conclusion that the defendant did not have a fidu-
ciary duty with respect to the residuary assets, it has
not yet considered her remaining claims in support of
her motion for summary judgment. See footnote 5 of
this opinion. Accordingly, we reverse the judgment of
the trial court and remand the case to that court for
consideration of the defendant’s remaining claims in
support of her motion for summary judgment, namely,
that the defendant reasonably relied on the expertise
and judgment of Rubinow and Finguerra, that her
actions as alleged by the plaintiffs were not sufficiently
egregious to constitute a breach of fiduciary duty under
the terms of the trust, applicable statutes and case law,
that some or all of the plaintiffs’ claims were barred
by the statute of limitations, and any other grounds that
the trial court determines have been properly pre-
sented.
The judgment is reversed and the case is remanded
for further proceedings in accordance with this opinion.
In this opinion the other justices concurred.
1
The five cases consolidated with the present case include (1) Barash v.
Rubinow, Superior Court, judicial district of Hartford, Docket No. HHD-CV-
XX-XXXXXXX-S (plaintiffs’ appeal from August 31, 2018 Probate Court decree
approving in part final accounting), (2) Rubinow v. Barash, Superior Court,
judicial district of Hartford, Docket No. HHD-CV-XX-XXXXXXX-S (appeal of
executor, Laurence P. Rubinow, from August 31, 2018 Probate Court decree
partially denying attorney’s fees sought in connection with final accounting),
(3) Barash v. Rubinow, Superior Court, judicial district of Hartford, Docket
No. HHD-CV-XX-XXXXXXX-S (plaintiffs’ appeal from May 24, 2018 Probate
Court decree approving in part fourth interim accounting), (4) Barash v.
Rubinow, Superior Court, judicial district of Hartford, Docket No. HHD-
CV-XX-XXXXXXX-S (plaintiffs’ appeal from May 10, 2018 Probate Court decree
denying petition to remove Rubinow as executor), and (5) Barash v.
Rubinow, Superior Court, judicial district of Hartford, Docket No. HHD-CV-
XX-XXXXXXX-S (plaintiffs’ action against Rubinow, individually and as trustee,
Finguerra, and law firm of McCarter & English, LLP, alleging breach of
fiduciary duty as to Rubinow, aiding and abetting Rubinow in breaching his
fiduciary duty as to Finguerra, and vicarious liability as to McCarter &
English, LLP).
2
In its May 10, 2018 decree, the Probate Court indicated that Northern
Hills and M/S Town Line Associates have been liquidated. The plaintiffs
allege that Northern Hills was dissolved in 2014.
3
In addition to his role as executor of the estate, Rubinow is the third
cotrustee of the trust. In Barash v. Rubinow, Superior Court, judicial district
of Hartford, Docket No. HHD-CV-XX-XXXXXXX-S, one of the plaintiffs’ claims
against Rubinow was that he breached his fiduciary duty in his capacity as
cotrustee. As to that claim, the trial court granted Rubinow’s motion for
summary judgment on the same basis that it granted the defendant’s motion
for summary judgment in the present action. The plaintiffs have not appealed
from that ruling.
4
The defendant owned a 1 percent interest in the commercial assets.
Finguerra’s wife owned the remaining 1 percent interest.
5
The defendant also argued that she had reasonably relied on the expertise
and judgment of Rubinow and Finguerra, that her actions as alleged by the
plaintiffs were not sufficiently egregious under the trust, applicable statutes,
and case law to constitute a breach of fiduciary duty, and that some or all
of the plaintiffs’ claims were barred by the statute of limitations. Because
the trial court concluded that the defendant owed no fiduciary duty to the
trust beneficiaries until the estate settled, it did not reach her additional
arguments in favor of summary judgment. As we explain in this opinion,
we direct the trial court to consider these issues on remand.
6
The trial court also rendered judgment in favor of Finguerra, and in
favor of Rubinow in his capacity as cotrustee. As to the claims against
Rubinow in his capacity as executor in the four appeals from the Probate
Court, however, the court denied summary judgment as to both sides.
Because the court denied summary judgment with respect to Rubinow in
his capacity as executor, it also denied summary judgment with respect to
the vicarious liability claims that the plaintiffs brought against Rubinow’s
law firm, McCarter & English, LLP. See footnote 1 of this opinion.
7
This is the common-law rule in Connecticut. See, e.g., Salem Park, Inc.
v. Salem, 149 Conn. 141, 144, 176 A.2d 571 (1961) (prior judgment retains
preclusive effect during pendency of appeal); Rogers v. Hendrick, 85 Conn.
271, 276, 82 A. 590 (1912) (‘‘[a] manifestly erroneous’’ judgment in prior
action retained preclusive effect ‘‘until set aside by writ of error or appeal,
or other proper proceedings’’).
8
An appeal from a probate proceeding conducted on the record is treated
differently. See General Statutes § 45a-186 (d) (appeal from decision of
Probate Court ‘‘rendered in any case after a recording of the proceedings
is made . . . shall be on the record and shall not be a trial de novo’’);
Andrews v. Gorby, 237 Conn. 12, 15–16, 675 A.2d 449 (1996) (explaining
that, following passage of No. 82-472 of 1982 Public Acts, pursuant to § 45a-
186, standard of review on appeal from judgments of Probate Court rendered
after record of probate proceedings was made ‘‘shall not be a trial de novo,’’
and concluding that, because no record was made of Probate Court proceed-
ings, trial de novo was required (emphasis in original; internal quotation
marks omitted)); see also General Statutes § 45a-186b (setting forth standard
for ‘‘an appeal taken under section 45a-186 from a matter heard on the
record in the Probate Court,’’ pursuant to which ‘‘[t]he Superior Court shall
affirm the decision of the Probate Court unless the Superior Court finds
that substantial rights of the person appealing have been prejudiced because
the findings, inferences, conclusions or decisions are: (1) [i]n violation of
the federal or state constitution or the general statutes, (2) in excess of the
statutory authority of the Probate Court, (3) made on unlawful procedure,
(4) affected by other error of law, (5) clearly erroneous in view of the
reliable, probative and substantial evidence on the whole record, or (6)
arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion’’); Fumega v. Norwalk Probate Court,
Docket No. FST-CV-XX-XXXXXXX, 2017 WL 5505721, *4–5 (Conn. Super. Octo-
ber 11, 2017) (describing and applying § 45a-186b standard in appeal from
probate decree when proceedings were on record).
9
General Statutes § 45a-24 provides in relevant part: ‘‘All orders, judg-
ments and decrees of courts of probate, rendered after notice and from
which no appeal is taken, shall be conclusive and shall be entitled to full
faith, credit and validity and shall not be subject to collateral attack, except
for fraud.’’ (Emphasis added.) On its face, the emphasized language suggests
that the ordinary preclusion rules are suspended if an appeal is taken from
the Probate Court’s order, judgment, or decree. The decisions of both this
court and the Appellate Court cited in the text of this opinion, however,
have consistently held that a pending appeal does not deprive a Probate
Court order, judgment, or decree of finality for purposes of res judicata and
collateral estoppel. See Kerin v. Stangle, supra, 209 Conn. 265; Kochuk v.
Labaha, supra, 126 Conn. 329; Silverstein v. Laschever, supra, 113 Conn.
App. 414. Because our precedent interpreting § 45a-24 does not speak to
the narrow question of whether a pending appeal de novo deprives a Probate
Court judgment of preclusive effect, we look elsewhere for guidance on
that question.
10
We note two mid-nineteenth century decisions of this court that,
although not cited by either party to this appeal, warrant brief discussion.
See Bank of North America v. Wheeler, 28 Conn. 433, 442 (1859); Curtiss
v. Beardsley, 15 Conn. 518, 523 (1843). Neither Wheeler nor Curtiss involved
an appeal from the Probate Court. Curtiss involved an appeal to the county
court from a judgment rendered by a justice of the peace. See Curtiss v.
Beardsley, supra, 522. The appeal at issue in Wheeler was taken to a New
York appellate tribunal from a judgment of a New York court of common
pleas. See Bank of North America v. Wheeler, supra, 434 (preliminary state-
ment of facts and procedural history). Applying the formal categories used
at the time, the court in Curtiss contrasted appeals that operated to bring
the ‘‘whole cause’’ before the reviewing court ‘‘as if it had been originally
commenced there,’’ with appeals that involved ‘‘only the order, sentence,
denial, decree or judgment of a court of probate in the settlement of an
estate, that may be appealed from . . . .’’ (Citation omitted.) Curtiss v.
Beardsley, supra, 523; see Bank of North America v. Wheeler, supra, 442.
Curtiss held that the former type of appeal (one that brings up the ‘‘whole
cause’’ for a trial de novo on appeal) operates automatically to vacate the
judgment of the inferior court. Curtiss v. Beardsley, supra, 523–24. Wheeler
establishes the converse proposition, holding that, ‘‘if [an] appeal is in the
nature of a writ of error, and only carries up the case to the court of appeals
as an appellate court for the correction of errors [that] may have intervened
on the trial of the case below,’’ then the appeal does not vacate the judgment
from which the appeal is taken. Bank of North America v. Wheeler, supra,
442; see id. (‘‘[t]he judgment below is only voidable, and stands good until
set aside’’). The logic behind the ‘‘voidable not void’’ principle relied on in
both decisions is elusive at best as applied in this context, and we have
previously signaled that we will not extend its practical effect any more
than strictly necessary. See Kerin v. Stangle, supra, 209 Conn. 265–66 (noting
possibility of inconsistent judgments arising from voidable not void approach
and stating that ‘‘[w]e refuse to countenance such a result’’). Neither Curtiss
nor Wheeler, of its own force, compels the result advocated by the defendant
in the present case, and we will not extend either holding in such a manner.
11
This example is offered for illustrative purposes only. There may be
better or additional ways to sequence and manage the consolidated cases
to accomplish the goals of fairness and efficiency in light of all of the relevant
circumstances.
12
These statutory provisions were enacted in 2019 as part of the Connecti-
cut Uniform Trust Code (code), General Statutes § 45a-499a et seq. See
Public Acts 2019, No. 19-137. The retroactive applicability of the code to
any particular situation depends on the nature of the disputed issue. Relevant
to the present appeal, General Statutes § 45a-487t (a) (1) provides in relevant
part that the code applies to ‘‘all trusts created before, on or after January
1, 2020.’’ Subsection (a) (5) of § 45a-487t, by contrast, bars retroactive appli-
cation of the code to ‘‘[a]n act done before January 1, 2020 . . . .’’ The
parties have not briefed any issue relating to the retroactive application of
the code. The code did not change or redefine the fiduciary duties owed
by the defendant to the trust beneficiaries but merely codified the common
law in this respect. See Benjamin v. Corasaniti, 341 Conn. 463, 479 n.11,
267 A.3d 108 (2021). Consequently, we need not address whether the code
applies retroactively to the defendant’s actions.
13
See also General Statutes § 45a-499iii (‘‘[a] trustee shall take reasonable
steps to enforce claims of the trust and to defend claims against the trust’’);
General Statutes § 45a-499jjj (‘‘[a] trustee shall take reasonable steps to
compel a former trustee or other person to deliver trust property to the
trustee and to redress a breach of trust known to the trustee to have been
committed by a former trustee’’ (emphasis added)).
14
We disagree with the defendant’s contention that Warner supports the
proposition that a trustee’s duties ‘‘shut off’’ when an interim distribution
has depleted the trust of all assets and turn on again if and when additional
assets are conveyed to the trust. (Internal quotation marks omitted.) Warner
involved a testamentary trust that the Appellate Court held never came into
existence. See Warner v. Merchants Bank & Trust Co., supra, 2 Conn. App.
732. Nothing in that decision suggests that a trustee’s duties in administering
an existing trust ‘‘turn on’’ and ‘‘shut off’’ depending on whether the trust
is currently funded. As we have explained, a trustee’s duties to administer
the trust commence upon acceptance of the trusteeship. See 3 Restatement
(Third), supra, § 76, comment (a), p. 68 (‘‘[o]nce having accepted the office
. . . a trustee has a duty to administer the trust as long as he or she continues
to serve as trustee’’).
15
First National Bank of Middletown v. Gregory, 13 Ohio App. 3d 161,
163, 468 N.E.2d 739 (1983), relied on by the defendant for the proposition
that she had no duty to act because she did not have legal title to the residual
assets, is distinguishable. In Gregory, the defendant settlor, John M. Gregory,
named the plaintiff bank (bank) as trustee of an inter vivos trust. Id., 162.
Gregory executed a note secured by a mortgage with the bank and instructed
the bank that payments on the note were to be made from the income
generated by the trust. Id. The trust income came from payments on land
contracts in connection with parcels of land that Gregory sold before creat-
ing the trust. Id. When some of the vendees began to fall behind in their
payments on the land contracts, the trust no longer generated sufficient
income to make payments on the note. Id. The bank notified Gregory of
the arrearage and informed him that, until he assigned the land contracts
to the bank, it lacked any power to enforce payment on the contracts. Id.
When the bank filed for foreclosure on the note and the mortgage, Gregory
counterclaimed that the bank had breached its fiduciary duty by failing to
enforce and collect payment on the land contracts. Id., 162–63. In upholding
the trial court’s ruling that the bank had not breached its fiduciary duty,
the Ohio Court of Appeals noted that, because the land contracts had not
been assigned to the bank, it had no power to enforce the contracts or to
collect the income. Id. By contrast, in the present case, the plaintiffs do not
claim that the trustee had a duty to take action with respect to the residuary
assets that required her to hold title to or to possess of those assets. Instead,
they claim that the defendant had a duty to take action to investigate and
otherwise to pursue a claim that Rubinow should have transferred those
assets to the trust.
16
Our holding rests on general principles of trust law pursuant to the
common law and the General Statutes. We previously have recognized that
the applicability of these legal principles can be impacted substantially by
the particular provisions of a trust instrument. See Hartford National
Bank & Trust Co. v. Birge, 159 Conn. 35, 42, 266 A.2d 373 (1970). Accordingly,
at least within any limits that may be prescribed by law, ‘‘[i]n each case, it
is the intention expressed by the particular language employed [that] must
be construed.’’ Id., 42–43. On remand to the trial court, the parties will have
the opportunity to raise any arguments as to whether the language of the
trust should be construed to alter or otherwise to depart from the back-
ground legal principles set forth in this opinion. With one exception,
addressed in the following paragraph, we will not presently offer any views
on this issue, which is best considered in the first instance by the trial court
now that the applicable legal framework has been established.
We do not agree with the defendant that the trust limits the defendant’s
liability to actions that constitute fraud or abuse of discretion or that were
undertaken in bad faith. The trust provides in relevant part: ‘‘All individual
(noninstitutional) [t]rustees shall be deemed to have: (a) acted within the
scope of the authority granted herein; (b) exercised reasonable care, dili-
gence and prudence; and (c) acted in good faith and impartially as to all
persons interested in any trust created herein, unless the contrary shall be
proven by clear and convincing affirmative evidence.’’ (Emphasis added.)
This language, the validity or applicability of which is not disputed by the
plaintiffs, requires the plaintiffs to rebut, by clear and convincing evidence,
the presumption that the defendant acted reasonably, diligently, and in good
faith. It imposes a heightened burden of proof on the plaintiffs. It does not,
however, foreclose the plaintiffs from bringing a cause of action predicated
on a breach of the defendant’s fiduciary duty of prudence.
17
Our conclusion that questions of material fact remain as to whether the
defendant breached her duty to investigate, to make inquiries, to object to
Rubinow’s management of the estate, or to enforce claims against Rubinow
on behalf of the trust does not, as the plaintiffs suggest, mean that the
plaintiffs have prevailed against the defendant as to liability. We hold only
that, on this record, the trial court should not have granted the defendant’s
motion for summary judgment. Any ultimate liability determination will
depend on the resolution of disputed factual issues and the decision maker’s
application of the controlling legal principles to its factual findings.
18
See, e.g., Hall v. Schoenwetter, 239 Conn. 553, 559, 686 A.2d 980 (1996);
see also 3 Restatement (Third), supra, § 76 (1), p. 68 (trustee has duty to
administer trust ‘‘in good faith’’); id., § 78 (1), p. 93 (trustee’s duty of loyalty
requires trustee ‘‘to administer the trust solely in the interest of the benefici-
aries’’).
19
See, e.g., Phillips v. Moeller, supra, 148 Conn. 369; Willis v. Hendry,
127 Conn. 653, 661, 20 A.2d 375 (1940); see also 3 Restatement (Third),
supra, § 76 (1), p. 68 (trustee has duty to administer trust ‘‘diligently’’); 3
Restatement (Third), supra, § 77 (1) and (2), p. 81 (duty of prudence requires
trustee ‘‘to administer the trust as a prudent person would, in light of the
purposes, terms, and other circumstances of the trust,’’ and to ‘‘exercise
. . . reasonable care, skill, and caution’’).
20
See, e.g., Gimbel v. Bernard F. & Alva B. Gimbel Foundation, Inc., 166
Conn. 21, 34, 347 A.2d 81 (1974) (trustees are under duty to deal impartially
with successor beneficiaries); see also 3 Restatement (Third), supra, § 79
(1), p. 127 (duty of impartiality requires trustee ‘‘to administer the trust
in a manner that is impartial with respect to the various beneficiaries of
the trust’’).
21
Contrary to the defendant’s suggestion, the duty of loyalty may be
breached in the absence of any self-dealing by the trustee. See, e.g., Phillips
v. Moeller, supra, 148 Conn. 369 (citing to 3 Bogert, The Law of Trusts and
Trustees (1935) § 543, to show that duty of loyalty may be implicated when
trustee considers interests of third persons or places herself in position
giving rise to conflict of interest); Lyman v. Stevens, 123 Conn. 591, 597,
197 A. 313 (1938) (same); see also 3 Restatement (Third), supra, § 78 (2),
pp. 93–94 (pursuant to duty of loyalty, ‘‘[e]xcept in discrete circumstances,
the trustee is strictly prohibited from engaging in transactions that involve
self-dealing or that otherwise involve or create a conflict between the trust-
ee’s fiduciary duties and personal interests’’ (emphasis added)). The
Restatement (Third) of Trusts expressly recognizes that the duty of loyalty
may be implicated both by a trustee’s ‘‘transactions, as trustee, with persons
with whom the trustee is closely related or associated,’’ and by ‘‘transactions
by a trustee, acting in either a fiduciary or personal capacity, with third
persons if the transaction would create a reasonably foreseeable risk of
future conflict between the trustee’s fiduciary duties and personal interests.
Although not self-dealing . . . transactions of this type could expose trust-
ees to the temptation of considering interests other than those of trust
beneficiaries.’’ (Citation omitted.) 3 Restatement (Third), supra, § 78, com-
ment (e), p. 106.
22
The putative requirement of self-dealing (or, more broadly, some other
breach of the duty of loyalty) was not taken out of thin air by the Appellate
Court. See Sherwood v. Danbury Hospital, 278 Conn. 163, 196–97, 896 A.2d
777 (2006) (even if it is assumed, arguendo, that defendant hospital owed
plaintiff patient fiduciary duty, plaintiff’s claim failed because she did not
allege ‘‘fraud, self-dealing, conflict of interest or the like’’); Beverly Hills
Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 57,
717 A.2d 724 (1998) (‘‘[p]rofessional negligence implicates a duty of care,
[whereas] breach of a fiduciary duty implicates a duty of loyalty and hon-
esty’’).
23
Rendahl is overruled to the extent that it requires an allegation of self-
dealing as an element of a claim of breach of fiduciary duty against a trustee.
We need not resolve in this appeal whether Rendahl correctly states the
required elements of a claim of breach of fiduciary duty with respect to
fiduciaries other than trustees.