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DOCKET NO. HHD-X07-CV19-6109896-S SUPERIOR COURT
SUSAN BARASH, TRUSTEE OF THE : COMPLEX LITIGATION DOCKET
RICHARD RIPPS AMENDED AND
RESTATED REVOCABLE TRUST DATED :
FEBRUARY 8, 2006, ET AL. : AT HARTFORD
v.
LAURENCE P. RUBINOW, INDIVIDUALLY
AND AS TRUSTEE, ET AL.
AUGUST 23,2019
REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS,
OR, IN THE ALTERNATIVE, TO STAY
In February of 2016, Plaintiffs informed the Probate Court that they objected to the
Fourth Interim Accounting and thereafter began filing numerous objections with the Probate
Court concerning the management of the assets of the Ripps Estate and Ripps Trust. Plaintiffs
also filed a Petition for Removal of Laurence Rubinow as Executor of the Ripps Estate (the
“Rubinow Removal Petition”), alleging that Rubinow had breached his fiduciary duties and
raising the same claims being asserted in this lawsuit. Plaintiffs’ challenges to the handling of
the estate and trust assets, complaints regarding Rubinow’s work, and allegations regarding
purported conflicts of interest were vigorously litigated in the Probate Court. Extensive
document discovery was conducted, depositions were taken, and the Probate Court took
testimony and evidence.
On May 10, 2018, the Probate Court issued its Memorandum of Decision as to the
Removal Petition and made detailed factual findings concerning Mr. Ripps’ intent in naming
Rubinow as executor, the performance of the estate’s assets under Rubinow’s care, and the
alleged conflicts of interest. The Probate Court rejected all of Plaintiffs’ claims, holding “the
Estate has clearly benefitted from the Executor’s experience, expertise and service.” HHD-
CY18-6096025-S Dkt. 100.30, Ex. A at 4. In 2018, Plaintiffs appealed the Probate Court
decisions, including the Rubinow Removal Petition decision, and those appeals are pending
before this Court.
Almost one year after the Probate Court issued its Removal Petition Decree, on April 9,
2019, Plaintiffs filed the instant action seeking a second bite at the apple to prove breach of
fiduciary duty. As argued in Defendants’ Motions to Dismiss, Dkt. Ill .00, 112.00, this case
should be dismissed under the prior pending action doctrine in favor of the three Probate
Appeals. Dismissal of a later-filed action “prevent[s] unnecessary litigation that places a burden
1
on crowded court dockets,” thereby conserving judicial resources and fostering judicial
economy, Lodmell v. LaFrance, 154 Conn. App. 329, 333 (2014) (quotation marks omitted), all
while protecting defendants like Rubinow from “oppressive and vexatious” litigation, Saracino
v. Hartford Fin. Servs. Grp., 107 Conn. App. 410, 412 (2008) (quotation marks omitted).
In their Opposition to the Motion to Dismiss, Dkt. 114.00 (“Opp.”), Plaintiffs do not
contest that this case is predicated on the same actions taken by Rubinow that were litigated in
the Probate Court. Instead, to avoid dismissal, Plaintiffs claim that they have a right to relitigate
the issues in a new forum because they now want a jury trial, want a different burden of proof to
apply, and want to get different relief. Moreover, Plaintiffs claim that the addition of new
defendants and new causes of action preclude application of the prior pending action doctrine.
As detailed below, each of these arguments fail.
I. Plaintiffs Have No Right To A Jury Trial
Plaintiffs claim that they have a right to a jury trial on the issue of breach of fiduciary
duty. While that may have been the case at one time, it is no longer. Plaintiffs waived their right
to a jury trial by: (1) placing the question of breach of fiduciary duty squarely before the Probate
Court; (2) failing to petition the Probate Court to remove the issue of breach of fiduciary duty to
the Superior Court before the Probate Court’s hearing on the merits; and (3) fully litigating the
issue in the Probate Court, only seeking a jury trial after an adverse determination.
A. Plaintiffs Did Not Seek A Jury Trial Under Conn. Gen. Stat. § 45a-98a
In 1993, the Legislature adopted the recommendations of a Probate Court task force,
enacting changes that both broadened the jurisdiction of the Probate Court and protected a
“litigant’s right to a jury trial in Superior Court on issues that were triable to a jury.” Cassem v.
TIAA-CREF Individual & Institutional Servs., LLC, 2016 WL 6128123, at *3 (Conn. Super. Ct.
2
Sept. 21, 2016).
Connecticut General Statutes § 45 a-.98a allows a plaintiff to apply to the Probate Court to
remove issues for a jury trial that are subject to concurrent Probate and Superior Court
jurisdiction, including where the court must “construe the meaning and effect of. .. any will or
trust agreement if a construction is required in connection with the administration or distribution
of a trust or estate otherwise subject to the jurisdiction of the Probate Court.” C.G.S. § 45a-98.
However, “[i]f a party fails ... to claim a jury trial prior to the initial hearing in the Probate
Court on the merits ... the party shall be deemed to have consented to a hearing on the matter in
the Probate Court and to have waived any right under section 52-215 or other applicable law to a
trial by jury.” C.G.S. § 45a-98a(b) (emphasis added).
There is no dispute that a breach of fiduciary duty claim is subject to the concurrent
jurisdiction of both the Probate and Superior Courts. Plaintiffs recognized as much in placing
the issue of breach of fiduciary duty squarely before the Probate Court in the Rubinow Removal
Petition. Thus, it is no surprise that litigants have used § 45a-98a to remove breach of fiduciary
duty questions otherwise pending in Probate Court to the Superior Court for a jury trial. See,
e.g., Desjardins v. Fontanella, 2014 WL 4494414, at *1 (Conn. Super. Ct. July 30, 2014)
(seeking jury trial for breach of fiduciary duty pursuant to § 45a-98a). However, Plaintiffs chose
not to follow that path. They instead had the Probate Court address the breach of fiduciary duty
claims, which required the Probate Court to construe the Ripps will.1 Diet. No. HHD-CV18-
1 In construing a will, the court’s “quest in each case is the expressed intent of the testator or settlor in the
light of the circumstances surrounding him at the time the instrument was executed.” Connecticut Bank
& Tr. Co. v. Hills, 157 Conn. 375, 379 (1969). The Probate Court performed precisely that analysis,
considering Mr. Ripps’s histoiy with Rubinow and finding that “[t]he evidence indicates that the decedent
chose Attorney Rubinow as his executor precisely because of his intimate knowledge and understanding
of the decedent’s business interests, as well as his great confidence in Rubinow.” Diet. No. HHD-CV18-
6096025-S, Ex. A at 3.
3
6096025-S, Ex. A at 3. Having failed to remove the breach of fiduciary duty claim to the
Superior Court pursuant to C.G.S. § 45a-98a, Plaintiffs “waived any right... to a trial by jury.”
C.G.S. § 45a-98a(b).
Saracino v. Hartford Fin. Servs. Grp., Inc., 50 Conn. Supp. 503 (2007) is directly on
point. There the court rejected plaintiffs “attempt to revive her untimely claim for a jury trial”
by bringing a second suit. Id. at 512. “Permitting the plaintiff to resurrect her lost claim in this
manner by raising claims that are substantially identical to those raised in the prior pending
action would contravene the goal of maintaining orderly, efficient and consistent judicial
processes.” Id. at 512.
B. Plaintiffs Are Equitably Estopped From Claiming A Jury Trial
Courts apply the doctrine of equitable estoppel to preclude litigants who have consented
to adjudicate issues in a given forum from seeking a second bite at the apple upon an adverse
decision. For example, it is well-established that a litigant cannot participate in arbitration and
then, upon a negative decision, challenge the authority of the arbitrator and seek a trial by jury
instead. See Green v. Connecticut Disposal Serv., Inc., 62 Conn. App. 83, 93 (2001) (applying
equitable estoppel to dismiss suit).2 Plaintiffs not only consented to the Probate Court’s
determination of the fiduciary duty issue, they affirmatively placed the question of fiduciary duty
before the Probate Court. Plaintiffs did not seek a jury trial, through C.G.S. § 45a..98a or
2 In Green v. Connecticut Disposal Serv., Inc., 62 Conn. App. 83 (2001), plaintiffs, non-signatories to an
arbitration agreement, participated in arbitration but argued post hoc that they had never consented to
arbitration in the first place. The Court, applying the doctrine of estoppel, soundly rejected that
argument. Id. at 95. “The guarantors, after such full and willing participation, . .. sought another chance
to retry the issues in a second forum .... Essentially, they asked the court to approve their wasting the
plaintiffs time and to force the plaintiff to abandon the successful result he had secured at the arbitration
hearing.” Id.at 93 (emphasis added). The Court found that the defendants had “manifested their intent to
arbitrate by willingly participating in the proceedings” and, having done so, they could not “accept the
benefits of submitting their dispute to an arbitration panel, only to reject unfavorable results of that
process.” Id.at 93-95.
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otherwise, until after an adverse determination.
C. Dettenborn Does Not Require A Different Result
Plaintiffs rely heavily on Dettenborn v. Hartford-National Bank & Trust Co., 121 Conn.
388 (Conn. 1936), and its progeny for the proposition that “Plaintiffs have the right to a jury trial
and the right to seek money damages from Defendants in this lawsuit” and, therefore, the prior
pending action doctrine does not apply. Opp. at 11-15. These cases are distinguishable and do
not preclude application of the prior pending action doctrine here.
Each of the cases relied upon by Plaintiff for the proposition they will be deprived of
essential rights predates the 1993 enactment of C.G.S. § 45a-98a. See Dettenborn, 121 Conn.
388 (1936); Conti v. Murphy, 23 Conn. App. 174 (1990); Roessler v. Conn. Nat. Bank, 34 Conn.
Supp. 136 (1977).
Additionally, Plaintiffs rely on far too broad a reading of Dettenborn, in which the court
took great pains to confine its analysis to its facts. The court was not only concerned that the
plaintiff would lose certain rights but, more so, that such rights would be lost where the plaintiff
himself had not initiated the prior pending action in the Probate Court. 121 Conn, at 84 (“/'A]t
least where he has not instituted the probate proceedings, their pendency cannot be permitted to
deprive him of the right to bring an ordinary action.” (emphasis added)); see also Conti v.
Murphy, 23 Conn. App. 174, 179 (1990) (the Superior Court action was initiated by plaintiffs
who had not participated in the probate proceedings). Here, Plaintiffs expressly raised breach of
fiduciary duty claims with the Probate Court. See Dkt. No. HHD-CV18-6096025-S. This is a
far cry from Dettenborn’s passive plaintiff, whose potential loss of rights was premised upon
probate proceedings that he did not commence and thus constituted circumstances outside of his
control.
5
Moreover, Dettenborn did not implicate the same concern for inconsistent rulings. There the
Probate Court did not consider and resolve any claim of breach of fiduciary duty, at most the
Court recognized that a fiduciary duty concern could be decided by the Probate Court.
Dettenborn, 121 Conn. 388. In contrast, here, the Plaintiffs put Rubinow’s alleged breaches
directly at issue and therefore the Probate Court made factual and legal determinations on that
issue. Plaintiffs seek a second adjudication of the exact same issues already determined by the
Probate Court. Dettenborn involved—and authorized—no such duplication.
II. Plaintiffs Have No Right To A More Favorable Burden
Plaintiffs argue that they have a right to what they claim is a more favorable burden in
establishing breach of fiduciary duty. Opp. at 23-24. This goes hand-in-hand with the jury trial
right. Plaintiffs would have had their preferred burden had they exercised their right to remove
the case to Superior Court pursuant to C.G.S. § 45a-98a. Having chosen to litigate in the Probate
Court, Plaintiffs cannot be heard to complain that the forum did not favor them.
III. Plaintiffs’ Claim for Damages Does Not Preclude Dismissal Under the Prior
Pending Action Doctrine
Plaintiffs claim that they are entitled to damages which were unavailable in the Probate
Court. Opp. at 2. Plaintiffs could have sought damages in conjunction with the original
litigation of the breach of fiduciary duty issue either by bringing their claim for breach of
fiduciary duty in the Superior Court in the first place or removing the issue to Superior Court.
See Desjardins, 2014 WL 4494414, at *1 (seeking $45,000 for breach of fiduciary duty pursuant
to § 45a-98a). Having failed to do so, they have waived the opportunity.
Additionally, in the more than eighty years since Dettenborn, the Connecticut Supreme
Court has clarified that the absence of a particular remedy alone does not prevent dismissal of a
second action adjudicating the same underlying rights. See Halpern v. Bd. ofEduc. of City of
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Bristol, 196 Conn. 647, 655 (1985) (“[T]he fact that different relief is sought does not prevent
dismissal of a second action adjudicating the same underlying rights.” (emphasis in original)
(quotation marks and alteration omitted)).3 Had the Probate Court found a breach of fiduciary
duty, it could have awarded monetary relief through the use of “surcharges” including “to charge
the fiduciary with property and income which he or she neglected to get. ...” Gaynor v. Payne,
261 Conn. 585, 597 (2002); see also Kleinman v. Chapnick, 2012 WL 1662170, at *2 (Conn.
Super. Ct. Apr. 18, 2012), aff’d, 140 Conn. App. 500 (2013) (granting dismissal under prior
pending action doctrine even though new suit sought damages unavailable in family relations
court because “family relations court has available monetary relief under its contempt powers”).
IV. New Parties and New Legal Theories Do Not Preclude Dismissal
Plaintiffs claim that minimal differences in the parties and theories raised somehow
transforms the dispute into something entirely new and different. Even a cursory examination of
the factual allegations within the Complaint, as compared to the Probate Appeals, reveals they
are worded nearly identically. See Motion to Dismiss, Dkt. 112.00, Appendix. “Our Supreme
Court has held that superficial differences are not enough to overcome dismissal under the prior
pending action doctrine.” N. Homes Distributors, Inc. v. Grosch, 22 Conn. App. 93, 97 (1990).
Courts routinely apply the prior pending action doctrine where the alleged conduct is the
same and the claims against the “new” parties are premised upon the actions of the common
party. See Gaudio, 23 Conn. App. at 296 (strict party identity unnecessary where non-common
defendant corporation’s liability predicated on actions of common defendant “acting for the
3 Plaintiffs fail to materially distinguish Halpern, asserting murkily that the court there relied on different
“factors.” Opp. at 19. To the contrary, Halpern simply articulates the modern principle that different
relief is not dispositive with respect to the prior pending action doctrine analysis. Halpern, 196 Conn, at
655; see also Gaudio v. Gaudio, 23 Conn. App. 287, 296 (1990) (“The difference in the relief requested
in the two actions is not dispositive. ... It is clear that both actions seek adjudication of the same
underlying issue ....).
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corporation”).4 The claims against Defendants McCarter & English, for vicarious liability, and
John Finguerra, for aiding and abetting, are entirely derivative of the claims against Rubinow
and, therefore, are not a basis to avoid application of the prior pending action doctrine.
Additionally, different claims or theories of liability do not prevent dismissal. “Dismissal
of the second action has been upheld when ‘ [t]he variations in the allegations of the theories of
liability are merely different ways to characterize how the defendant’s actions resulted in liability
to the plaintiff.’” Kolakowski v. Hartford Fin. Servs. Grp., Inc., 2014 WL 3805594, at *4 (Conn.
Super. Ct. June 24, 2014) (quoting Sandvigv. A. Debreuil & Sons, Inc., 53 Conn. App. 466, 470
(1999)). “These dismissals [despite variations] are consistent with Connecticut’s application of
the modern trend, which construes ‘pleadings broadly and realistically, rather than narrowly and
technically.’” Kolakowski, 2014 WL 3805594, at *4 (quoting Sandvig, 53 Conn. App. at 470)
(emphasis added). Dismissal pursuant to the prior pending action doctrine is particularly
appropriate where, as here, “the complaints are nearly identical” and “the language is exactly the
same.” Selimoglu v. Phimvongsa, 119 Conn. App. 645, 653 & n.5 (2010).
V. In The Absence of Dismissal, A Stay Is Appropriate
Finally, to the extent the Court has any reservation regarding granting the Motion to
4 See also N. Homes Distributors, Inc., 22 Conn. App. at 97 (strict party identity unnecessary where non
common defendant alleged to be common defendant’s alter ego); Cole v. Associated Const. Co., 141
Conn. 49, 54-55 (Conn. 1954) (“[ijt is not material that there are additional parties defendant [sic] in the
second action, since a judgment against the [common defendant] in the first suit would be predicated
upon the same facts as are relied upon in the second suit; that is, the ground of liability alleged against the
[common defendant] in the first suit is the same as that alleged against it in the second suit.”);
Kolakowski, v. Hartford Fin. Servs. Grp., Inc., 2014 WL 3805594, at *5 (Conn. Super. Ct. June 24, 2014)
(“additional defendant does not automatically destroy the defendants’ claim to a prior pending action” and
party distinction “significant and superficial” where liability of non-common defendant parent company is
predicated on the actions of common defendant subsidiary); Saracino, 50 Conn. Supp. at 511 (Super. Ct.
2007) (“[W]hen a party is seeking the same relief in multiple pending actions that arise from the same set
of underlying facts, a corporate defendant and its agent acting within the scope of his or her employment
should be regarded as the same party.”); Chiangv. Pyro Chem., Inc., No. CV 960151317S 1997 WL
330622, at *2 (Conn. Super. Ct. June 6, 1997) (primary defendant “and its insurer should be considered
the same party for purposes of the prior pending action doctrine”).
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Dismiss, it should stay the case.
Plaintiffs oppose the stay on the basis that if the Court upholds the Probate Court
decisions they will have collateral estoppel effect thereby depriving Plaintiffs of their right to a
jury trial. Opp. at 23. However, as discussed above, Plaintiffs waived their right to a jury trial
by placing this same issue before the Probate Court, failing to seek a jury trial pursuant to C.G.S.
§ 45a-98a, and actively litigating the issue through a determination on the merits.
Plaintiffs also worry that if the matter is stayed until after the Probate Appeals are
decided, those decisions will have collateral estoppel or res judicata effect. Opp. at 23. Plaintiffs
should be bound by the liability determinations of the Probate Court and this Court in connection
with the Probate Appeals—having affirmatively placed the question of breach of fiduciary duty
before the Probate Court and then actively litigated the same. The purposes of collateral
estoppel, to prevent waste of judicial and litigant time and resources, to promote finality in
judgments, and to protect against inconsistent judgments, are all implicated by Plaintiffs’ request
to relitigate the fiduciary duty issues that were previously decided.
Plaintiffs reveal what they really want to do is upend the entire probate process.
Plaintiffs want to start a brand new civil case on breach of fiduciary duty and have a jury decide
the issues based on a different burden of proof and then “stay the trial of the Probate Appeals
until the trial of this lawsuit is complete.” Opp. at 28. Alternatively, Plaintiffs want a jury to
decide all fact issues related to the alleged breach of fiduciary duty at issue in the Probate
Appeals and have the Court be bound by those determinations. Id. Such suggestions fly in the
face of the statutory framework for probate appeals.
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VI. Conclusion
For the foregoing reasons, Defendants respectfully request the Court grant their Motions
to Dismiss, or, in the Alternative, Stay.
Respectfully submitted,
DEFENDANT,
LAURENCE P. RUBINOW, INDIVIDUALLY
AND AS TRUSTEE AND
MCCARTER & ENGLISH, LLP
By: /s/ Timothy A. Diemand_________
Timothy A. Diemand
Robyn E. Gallagher
Ariela C. Anhalt
Wiggin and Dana LLP
20 Church Street
Hartford, CT 06103
Tel: 860-297-3700
Fax: 860-525-9380
E-mail: tdiemand@wiggin.com
Juris No. 67700
Their Attorneys
10
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing was delivered electronically on the 23rd day
of August, 2019, to as counsel of record as follows:
David B. Zabel
David E. Dobin
Cohen and Wolf, P.C.
1115 Broad Street
Bridgeport, CT 06604
dzabel@cohenandwolf. com
ddobin@,cohenandwolf. com
William H. Narwold
Motley Rice LLC
One Corporate Center
20 Church Street
Hartford, CT 06103
bnarwold@motleyrice.com
/s/ Timothy A. Diemand
Timothy A. Diemand
22888\3\4840-8265-3601.v5
11
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DOCKET NO. HHD-X07-CV19-6109896-S SUPERIOR COURT SUSAN BARASH, TRUSTEE OF THE : COMPLEX LITIGATION DOCKET RICHARD RIPPS AMENDED AND RESTATED REVOCABLE TRUST DATED : FEBRUARY 8, 2006, ET AL. : AT HARTFORD v. LAURENCE P. RUBINOW, INDIVIDUALLY AND AS TRUSTEE, ET AL. AUGUST 23,2019 REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS, OR, IN THE ALTERNATIVE, TO STAY In February of 2016, Plaintiffs informed the Probate Court that they objected to the Fourth Interim Accounting and thereafter began filing numerous objections with the Probate Court concerning the management of the assets of the Ripps Estate and Ripps Trust. Plaintiffs also filed a Petition for Removal of Laurence Rubinow as Executor of the Ripps Estate (the “Rubinow Removal Petition”), alleging that Rubinow had breached his fiduciary duties and raising the same claims being asserted in this lawsuit. Plaintiffs’ challenges to the handling of the estate and trust assets, complaints regarding Rubinow’s work, and allegations regarding purported conflicts of interest were vigorously litigated in the Probate Court. Extensive document discovery was conducted, depositions were taken, and the Probate Court took testimony and evidence. On May 10, 2018, the Probate Court issued its Memorandum of Decision as to the Removal Petition and made detailed factual findings concerning Mr. Ripps’ intent in naming Rubinow as executor, the performance of the estate’s assets under Rubinow’s care, and the alleged conflicts of interest. The Probate Court rejected all of Plaintiffs’ claims, holding “the Estate has clearly benefitted from the Executor’s experience, expertise and service.” HHD- CY18-6096025-S Dkt. 100.30, Ex. A at 4. In 2018, Plaintiffs appealed the Probate Court decisions, including the Rubinow Removal Petition decision, and those appeals are pending before this Court. Almost one year after the Probate Court issued its Removal Petition Decree, on April 9, 2019, Plaintiffs filed the instant action seeking a second bite at the apple to prove breach of fiduciary duty. As argued in Defendants’ Motions to Dismiss, Dkt. Ill .00, 112.00, this case should be dismissed under the prior pending action doctrine in favor of the three Probate Appeals. Dismissal of a later-filed action “prevent[s] unnecessary litigation that places a burden 1 on crowded court dockets,” thereby conserving judicial resources and fostering judicial economy, Lodmell v. LaFrance, 154 Conn. App. 329, 333 (2014) (quotation marks omitted), all while protecting defendants like Rubinow from “oppressive and vexatious” litigation, Saracino v. Hartford Fin. Servs. Grp., 107 Conn. App. 410, 412 (2008) (quotation marks omitted). In their Opposition to the Motion to Dismiss, Dkt. 114.00 (“Opp.”), Plaintiffs do not contest that this case is predicated on the same actions taken by Rubinow that were litigated in the Probate Court. Instead, to avoid dismissal, Plaintiffs claim that they have a right to relitigate the issues in a new forum because they now want a jury trial, want a different burden of proof to apply, and want to get different relief. Moreover, Plaintiffs claim that the addition of new defendants and new causes of action preclude application of the prior pending action doctrine. As detailed below, each of these arguments fail. I. Plaintiffs Have No Right To A Jury Trial Plaintiffs claim that they have a right to a jury trial on the issue of breach of fiduciary duty. While that may have been the case at one time, it is no longer. Plaintiffs waived their right to a jury trial by: (1) placing the question of breach of fiduciary duty squarely before the Probate Court; (2) failing to petition the Probate Court to remove the issue of breach of fiduciary duty to the Superior Court before the Probate Court’s hearing on the merits; and (3) fully litigating the issue in the Probate Court, only seeking a jury trial after an adverse determination. A. Plaintiffs Did Not Seek A Jury Trial Under Conn. Gen. Stat. § 45a-98a In 1993, the Legislature adopted the recommendations of a Probate Court task force, enacting changes that both broadened the jurisdiction of the Probate Court and protected a “litigant’s right to a jury trial in Superior Court on issues that were triable to a jury.” Cassem v. TIAA-CREF Individual & Institutional Servs., LLC, 2016 WL 6128123, at *3 (Conn. Super. Ct. 2 Sept. 21, 2016). Connecticut General Statutes § 45 a-.98a allows a plaintiff to apply to the Probate Court to remove issues for a jury trial that are subject to concurrent Probate and Superior Court jurisdiction, including where the court must “construe the meaning and effect of. .. any will or trust agreement if a construction is required in connection with the administration or distribution of a trust or estate otherwise subject to the jurisdiction of the Probate Court.” C.G.S. § 45a-98. However, “[i]f a party fails ... to claim a jury trial prior to the initial hearing in the Probate Court on the merits ... the party shall be deemed to have consented to a hearing on the matter in the Probate Court and to have waived any right under section 52-215 or other applicable law to a trial by jury.” C.G.S. § 45a-98a(b) (emphasis added). There is no dispute that a breach of fiduciary duty claim is subject to the concurrent jurisdiction of both the Probate and Superior Courts. Plaintiffs recognized as much in placing the issue of breach of fiduciary duty squarely before the Probate Court in the Rubinow Removal Petition. Thus, it is no surprise that litigants have used § 45a-98a to remove breach of fiduciary duty questions otherwise pending in Probate Court to the Superior Court for a jury trial. See, e.g., Desjardins v. Fontanella, 2014 WL 4494414, at *1 (Conn. Super. Ct. July 30, 2014) (seeking jury trial for breach of fiduciary duty pursuant to § 45a-98a). However, Plaintiffs chose not to follow that path. They instead had the Probate Court address the breach of fiduciary duty claims, which required the Probate Court to construe the Ripps will.1 Diet. No. HHD-CV18- 1 In construing a will, the court’s “quest in each case is the expressed intent of the testator or settlor in the light of the circumstances surrounding him at the time the instrument was executed.” Connecticut Bank & Tr. Co. v. Hills, 157 Conn. 375, 379 (1969). The Probate Court performed precisely that analysis, considering Mr. Ripps’s histoiy with Rubinow and finding that “[t]he evidence indicates that the decedent chose Attorney Rubinow as his executor precisely because of his intimate knowledge and understanding of the decedent’s business interests, as well as his great confidence in Rubinow.” Diet. No. HHD-CV18- 6096025-S, Ex. A at 3. 3 6096025-S, Ex. A at 3. Having failed to remove the breach of fiduciary duty claim to the Superior Court pursuant to C.G.S. § 45a-98a, Plaintiffs “waived any right... to a trial by jury.” C.G.S. § 45a-98a(b). Saracino v. Hartford Fin. Servs. Grp., Inc., 50 Conn. Supp. 503 (2007) is directly on point. There the court rejected plaintiffs “attempt to revive her untimely claim for a jury trial” by bringing a second suit. Id. at 512. “Permitting the plaintiff to resurrect her lost claim in this manner by raising claims that are substantially identical to those raised in the prior pending action would contravene the goal of maintaining orderly, efficient and consistent judicial processes.” Id. at 512. B. Plaintiffs Are Equitably Estopped From Claiming A Jury Trial Courts apply the doctrine of equitable estoppel to preclude litigants who have consented to adjudicate issues in a given forum from seeking a second bite at the apple upon an adverse decision. For example, it is well-established that a litigant cannot participate in arbitration and then, upon a negative decision, challenge the authority of the arbitrator and seek a trial by jury instead. See Green v. Connecticut Disposal Serv., Inc., 62 Conn. App. 83, 93 (2001) (applying equitable estoppel to dismiss suit).2 Plaintiffs not only consented to the Probate Court’s determination of the fiduciary duty issue, they affirmatively placed the question of fiduciary duty before the Probate Court. Plaintiffs did not seek a jury trial, through C.G.S. § 45a..98a or 2 In Green v. Connecticut Disposal Serv., Inc., 62 Conn. App. 83 (2001), plaintiffs, non-signatories to an arbitration agreement, participated in arbitration but argued post hoc that they had never consented to arbitration in the first place. The Court, applying the doctrine of estoppel, soundly rejected that argument. Id. at 95. “The guarantors, after such full and willing participation, . .. sought another chance to retry the issues in a second forum .... Essentially, they asked the court to approve their wasting the plaintiffs time and to force the plaintiff to abandon the successful result he had secured at the arbitration hearing.” Id.at 93 (emphasis added). The Court found that the defendants had “manifested their intent to arbitrate by willingly participating in the proceedings” and, having done so, they could not “accept the benefits of submitting their dispute to an arbitration panel, only to reject unfavorable results of that process.” Id.at 93-95. 4 otherwise, until after an adverse determination. C. Dettenborn Does Not Require A Different Result Plaintiffs rely heavily on Dettenborn v. Hartford-National Bank & Trust Co., 121 Conn. 388 (Conn. 1936), and its progeny for the proposition that “Plaintiffs have the right to a jury trial and the right to seek money damages from Defendants in this lawsuit” and, therefore, the prior pending action doctrine does not apply. Opp. at 11-15. These cases are distinguishable and do not preclude application of the prior pending action doctrine here. Each of the cases relied upon by Plaintiff for the proposition they will be deprived of essential rights predates the 1993 enactment of C.G.S. § 45a-98a. See Dettenborn, 121 Conn. 388 (1936); Conti v. Murphy, 23 Conn. App. 174 (1990); Roessler v. Conn. Nat. Bank, 34 Conn. Supp. 136 (1977). Additionally, Plaintiffs rely on far too broad a reading of Dettenborn, in which the court took great pains to confine its analysis to its facts. The court was not only concerned that the plaintiff would lose certain rights but, more so, that such rights would be lost where the plaintiff himself had not initiated the prior pending action in the Probate Court. 121 Conn, at 84 (“/'A]t least where he has not instituted the probate proceedings, their pendency cannot be permitted to deprive him of the right to bring an ordinary action.” (emphasis added)); see also Conti v. Murphy, 23 Conn. App. 174, 179 (1990) (the Superior Court action was initiated by plaintiffs who had not participated in the probate proceedings). Here, Plaintiffs expressly raised breach of fiduciary duty claims with the Probate Court. See Dkt. No. HHD-CV18-6096025-S. This is a far cry from Dettenborn’s passive plaintiff, whose potential loss of rights was premised upon probate proceedings that he did not commence and thus constituted circumstances outside of his control. 5 Moreover, Dettenborn did not implicate the same concern for inconsistent rulings. There the Probate Court did not consider and resolve any claim of breach of fiduciary duty, at most the Court recognized that a fiduciary duty concern could be decided by the Probate Court. Dettenborn, 121 Conn. 388. In contrast, here, the Plaintiffs put Rubinow’s alleged breaches directly at issue and therefore the Probate Court made factual and legal determinations on that issue. Plaintiffs seek a second adjudication of the exact same issues already determined by the Probate Court. Dettenborn involved—and authorized—no such duplication. II. Plaintiffs Have No Right To A More Favorable Burden Plaintiffs argue that they have a right to what they claim is a more favorable burden in establishing breach of fiduciary duty. Opp. at 23-24. This goes hand-in-hand with the jury trial right. Plaintiffs would have had their preferred burden had they exercised their right to remove the case to Superior Court pursuant to C.G.S. § 45a-98a. Having chosen to litigate in the Probate Court, Plaintiffs cannot be heard to complain that the forum did not favor them. III. Plaintiffs’ Claim for Damages Does Not Preclude Dismissal Under the Prior Pending Action Doctrine Plaintiffs claim that they are entitled to damages which were unavailable in the Probate Court. Opp. at 2. Plaintiffs could have sought damages in conjunction with the original litigation of the breach of fiduciary duty issue either by bringing their claim for breach of fiduciary duty in the Superior Court in the first place or removing the issue to Superior Court. See Desjardins, 2014 WL 4494414, at *1 (seeking $45,000 for breach of fiduciary duty pursuant to § 45a-98a). Having failed to do so, they have waived the opportunity. Additionally, in the more than eighty years since Dettenborn, the Connecticut Supreme Court has clarified that the absence of a particular remedy alone does not prevent dismissal of a second action adjudicating the same underlying rights. See Halpern v. Bd. ofEduc. of City of 6 Bristol, 196 Conn. 647, 655 (1985) (“[T]he fact that different relief is sought does not prevent dismissal of a second action adjudicating the same underlying rights.” (emphasis in original) (quotation marks and alteration omitted)).3 Had the Probate Court found a breach of fiduciary duty, it could have awarded monetary relief through the use of “surcharges” including “to charge the fiduciary with property and income which he or she neglected to get. ...” Gaynor v. Payne, 261 Conn. 585, 597 (2002); see also Kleinman v. Chapnick, 2012 WL 1662170, at *2 (Conn. Super. Ct. Apr. 18, 2012), aff’d, 140 Conn. App. 500 (2013) (granting dismissal under prior pending action doctrine even though new suit sought damages unavailable in family relations court because “family relations court has available monetary relief under its contempt powers”). IV. New Parties and New Legal Theories Do Not Preclude Dismissal Plaintiffs claim that minimal differences in the parties and theories raised somehow transforms the dispute into something entirely new and different. Even a cursory examination of the factual allegations within the Complaint, as compared to the Probate Appeals, reveals they are worded nearly identically. See Motion to Dismiss, Dkt. 112.00, Appendix. “Our Supreme Court has held that superficial differences are not enough to overcome dismissal under the prior pending action doctrine.” N. Homes Distributors, Inc. v. Grosch, 22 Conn. App. 93, 97 (1990). Courts routinely apply the prior pending action doctrine where the alleged conduct is the same and the claims against the “new” parties are premised upon the actions of the common party. See Gaudio, 23 Conn. App. at 296 (strict party identity unnecessary where non-common defendant corporation’s liability predicated on actions of common defendant “acting for the 3 Plaintiffs fail to materially distinguish Halpern, asserting murkily that the court there relied on different “factors.” Opp. at 19. To the contrary, Halpern simply articulates the modern principle that different relief is not dispositive with respect to the prior pending action doctrine analysis. Halpern, 196 Conn, at 655; see also Gaudio v. Gaudio, 23 Conn. App. 287, 296 (1990) (“The difference in the relief requested in the two actions is not dispositive. ... It is clear that both actions seek adjudication of the same underlying issue ....). 7 corporation”).4 The claims against Defendants McCarter & English, for vicarious liability, and John Finguerra, for aiding and abetting, are entirely derivative of the claims against Rubinow and, therefore, are not a basis to avoid application of the prior pending action doctrine. Additionally, different claims or theories of liability do not prevent dismissal. “Dismissal of the second action has been upheld when ‘ [t]he variations in the allegations of the theories of liability are merely different ways to characterize how the defendant’s actions resulted in liability to the plaintiff.’” Kolakowski v. Hartford Fin. Servs. Grp., Inc., 2014 WL 3805594, at *4 (Conn. Super. Ct. June 24, 2014) (quoting Sandvigv. A. Debreuil & Sons, Inc., 53 Conn. App. 466, 470 (1999)). “These dismissals [despite variations] are consistent with Connecticut’s application of the modern trend, which construes ‘pleadings broadly and realistically, rather than narrowly and technically.’” Kolakowski, 2014 WL 3805594, at *4 (quoting Sandvig, 53 Conn. App. at 470) (emphasis added). Dismissal pursuant to the prior pending action doctrine is particularly appropriate where, as here, “the complaints are nearly identical” and “the language is exactly the same.” Selimoglu v. Phimvongsa, 119 Conn. App. 645, 653 & n.5 (2010). V. In The Absence of Dismissal, A Stay Is Appropriate Finally, to the extent the Court has any reservation regarding granting the Motion to 4 See also N. Homes Distributors, Inc., 22 Conn. App. at 97 (strict party identity unnecessary where non common defendant alleged to be common defendant’s alter ego); Cole v. Associated Const. Co., 141 Conn. 49, 54-55 (Conn. 1954) (“[ijt is not material that there are additional parties defendant [sic] in the second action, since a judgment against the [common defendant] in the first suit would be predicated upon the same facts as are relied upon in the second suit; that is, the ground of liability alleged against the [common defendant] in the first suit is the same as that alleged against it in the second suit.”); Kolakowski, v. Hartford Fin. Servs. Grp., Inc., 2014 WL 3805594, at *5 (Conn. Super. Ct. June 24, 2014) (“additional defendant does not automatically destroy the defendants’ claim to a prior pending action” and party distinction “significant and superficial” where liability of non-common defendant parent company is predicated on the actions of common defendant subsidiary); Saracino, 50 Conn. Supp. at 511 (Super. Ct. 2007) (“[W]hen a party is seeking the same relief in multiple pending actions that arise from the same set of underlying facts, a corporate defendant and its agent acting within the scope of his or her employment should be regarded as the same party.”); Chiangv. Pyro Chem., Inc., No. CV 960151317S 1997 WL 330622, at *2 (Conn. Super. Ct. June 6, 1997) (primary defendant “and its insurer should be considered the same party for purposes of the prior pending action doctrine”). 8 Dismiss, it should stay the case. Plaintiffs oppose the stay on the basis that if the Court upholds the Probate Court decisions they will have collateral estoppel effect thereby depriving Plaintiffs of their right to a jury trial. Opp. at 23. However, as discussed above, Plaintiffs waived their right to a jury trial by placing this same issue before the Probate Court, failing to seek a jury trial pursuant to C.G.S. § 45a-98a, and actively litigating the issue through a determination on the merits. Plaintiffs also worry that if the matter is stayed until after the Probate Appeals are decided, those decisions will have collateral estoppel or res judicata effect. Opp. at 23. Plaintiffs should be bound by the liability determinations of the Probate Court and this Court in connection with the Probate Appeals—having affirmatively placed the question of breach of fiduciary duty before the Probate Court and then actively litigated the same. The purposes of collateral estoppel, to prevent waste of judicial and litigant time and resources, to promote finality in judgments, and to protect against inconsistent judgments, are all implicated by Plaintiffs’ request to relitigate the fiduciary duty issues that were previously decided. Plaintiffs reveal what they really want to do is upend the entire probate process. Plaintiffs want to start a brand new civil case on breach of fiduciary duty and have a jury decide the issues based on a different burden of proof and then “stay the trial of the Probate Appeals until the trial of this lawsuit is complete.” Opp. at 28. Alternatively, Plaintiffs want a jury to decide all fact issues related to the alleged breach of fiduciary duty at issue in the Probate Appeals and have the Court be bound by those determinations. Id. Such suggestions fly in the face of the statutory framework for probate appeals. 9 VI. Conclusion For the foregoing reasons, Defendants respectfully request the Court grant their Motions to Dismiss, or, in the Alternative, Stay. Respectfully submitted, DEFENDANT, LAURENCE P. RUBINOW, INDIVIDUALLY AND AS TRUSTEE AND MCCARTER & ENGLISH, LLP By: /s/ Timothy A. Diemand_________ Timothy A. Diemand Robyn E. Gallagher Ariela C. Anhalt Wiggin and Dana LLP 20 Church Street Hartford, CT 06103 Tel: 860-297-3700 Fax: 860-525-9380 E-mail: tdiemand@wiggin.com Juris No. 67700 Their Attorneys 10 CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing was delivered electronically on the 23rd day of August, 2019, to as counsel of record as follows: David B. Zabel David E. Dobin Cohen and Wolf, P.C. 1115 Broad Street Bridgeport, CT 06604 dzabel@cohenandwolf. com ddobin@,cohenandwolf. com William H. Narwold Motley Rice LLC One Corporate Center 20 Church Street Hartford, CT 06103 bnarwold@motleyrice.com /s/ Timothy A. Diemand Timothy A. Diemand 22888\3\4840-8265-3601.v5 11