Appendix — DiMauro v. Pavia

MICHAEL ROOK, JR., CLERK

tn The

Supreme Court uf the Hnited States

October Term, 1980

No. @ Q9- l 4 v4 2

SEBASTIANA DiMAURO

Petitioner

Vs.

GEORGE M. PAVIA, EDGAR A. HARCOURT

d/b/a PAVIA & HARCOURT, and BOSTON

OLD COLONY INSURANCE COMPANY

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

APPENDIX

Bruce L. Levin

Bai, Pollock & Dunigan

P.O. Box 1978

10 Middle Street

Bridgeport, Conn.

Counsel for Petitioner

March 19, 1980

TABLE OF CONTENTS

Appendix A (Opinion of Court of Appeals).........

Appendix B (Opinion of District Court-summary

SE oe ned oka e cee h ee hd daha dae dd aes

Appendix C (Opinion of District Court-motion to

DS eA cake cis ha kauas ts ek cnr ciaeie dees

Appendix D (Constitutional and Statutory Provi-

NS Caen cas Ko ee ecrGlm ia dest ee Aer Nee

Page

la

4a

34a

42a

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APPENDIX A

UNITED STATES COURT OF APPEALS

for the

SECOND CIRCUIT

At a stated Term of the United States Court of Appeals for

the Second Circuit, held at the United States Courthouse in the

City of New York, on the 28th day of December, one thousand

nine hundred and seventy-nine.

Present: HON. J. JOSEPH SMITH

HON. WILLIAM H. TIMBERS

Circuit Judges

HON. LLOYD F. MacMAHON

United States District Judge

Sitting by Designation

SEBASTIANA DiMAURO,

Plaintiff-Appellant,

v. Dkt. No. 79-7350

GEORGE M. PAVIA, EDGAR A. HARCOURT

c/b/a PAVIA & HARCOURT, and BOSTON

OLD COLONY INSURANCE COMPANY,

Defendants-Appellees

Appeal from the United States District Court for the

District of Connecticut.

This cause came on to be heard on the transcript of record

from the United States District Court for the District of Con-

necticut, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby or-

dered, adjudged, and decreed that the judgment of said District

Court be and it hereby is affirmed substantially for the reasons

set forth in Judge Newman’s opinion of April 16, 1979.

Plaintiff Sebastiana DiMauro sued George M. Pavia and

Edgar A. Harcourt, d/b/a the law firm of Pavia & Harcourt.

She charged defendants with negligence in administering and

managing her late husband’s estate. The district court granted

defendants’ motion for summary judgment. Plaintiff has ap-

pealed from that judgment.

The issues On appeal are:

(1) Do decrees of the Connecticut Probate Court

and the New York Surrogate’s Court, approving

final accountings and discharging defendant admin-

istration of her late husband’s estate?

(2) Is plaintiff equitably estopped from asserting

claims against defendants for actions she induced

or agreed to?

(3) Did the district court err in denying plaintiff’s

motion to remand this case to the Connecticut

state court of general jurisdiction?

(4) Did certain of plaintiff’s claims become moot

subsequent to institution of this suit?

Our careful examination of the record, particularly in the

light of the above issues on appeal, satisfies us that Judge

Newman properly granted defendants’ motion for summary

judgment.

As we held in SEC v. Research Automation Corp., 585 F.2d

31 (2 Cir. 1978), summary judgment is proper where (1) there is

no genuine issue of material fact and (2) the moving party is en-

titled to judgment as a matter of law. An opposing party cannot

avoid summary judgment by mere denials or conclusory allega-

tions, but must come forward with ‘‘concrete particulars’’ to

show that material issues of fact do exist.

3a

The major issues in this case are estoppel by judgment and

equitable estoppel. Although we hold that the district court was

correct in deciding both issues as it did, affirmance of its

holding on either ground would be sufficient to sustain the sum-

mary judgment entered in favor of defendants.

We find no error in the court’s conclusion that plaintiff is es-

topped by reason of the probate proceedings from raising claims

of negligence against defendants. Notice and an opportunity to

raise objections were provided. Plaintiff had retained counsel to

represent Surrogate’s Court. Her failure to do so is no bar to the

application of the doctrine of estoppel by judgment. Defen-

dants therefore were entitled to judgment as a matter of law.

In concluding that no genuine issue of material fact existed,

the court had before it depositions, answers to interrogatories,

and affidavits and supporting documents. This is not a case in

which summary judgment was rendered on the basis of a prema-

ture conclusion that material factual issues were not present.

Plaintiff cannot rest upon her denials to prevent summary judg-

ment from being entered against her.

Affirmed.

/s/ J. Joseph Smith

J. Joseph Smith

/s/ William H. Timbers

William H. Timbers, Circuit Judges.

/s/ Lloyd F. MacMahon

Lloyd F. MacMahon

United States Circuit Judge

Sitting by Designation

4a

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

SEBASTIANA DiMAURO :

V. : CIVIL NO. H-74-79

GEORGE M. PAVIA, ET AL :

MEMORANDUM OF DECISION ON

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

The plaintiff in this action seeks damages and equitable relief

for alleged fraudulent and negligent acts by defendants in the

administration of the estate of the piaintiff’s late husband.

Defendants have moved on a variety of grounds for summary

judgment on thirteen of fourteen counts in a second amended

complaint (Complaint). They rely primarily, however, on two

reasons set forth originally in their answer: that the plaintiff

had an opportunity to present the basic claims in this case in a

proceeding before the New York Surrogate’s Court, and is

barred by the decree in that Court from proceeding here; and

that the plaintiff ‘‘directed, induced and consented’”’ to the

actions of defendants out of which the present case arises.

In the nine years since Orazio DiMauro died intestate in Italy,

the dispute concerning the disposition of his estate has followed

procedural paths leading to a suit of Dickensian complexity.

The relevant facts can be derived from affidavits and the prod-

ucts of discovery had thus far,! as well as from previous court

proceedings. The plaintiff Sebastiana DiMauro (DiMauro) is

the sole heir of her husband Orazio, who died on January 25,

1970. The two had lived in Connecticut for several years before

they returned to Italy in 1967. From his retirement in 1957 until

his death, Orazio DiMauro’s primary vocation was investing in

the stock market. At his death, he owned securities in three cor-

porations and a home in Siracusa, Italy; approximately 90% of

the value of the estate was invested at that time in Harvey’s

Stores, Inc., a publicly traded corporation. On the date of death

the shares of Harvey’s Stores were worth approximately

$840,000 (some 65,000 shares at nearly $13/share), and were

held in a margin account with Francis I. duPont & Co. (duPont).

Sa

On December 30, 1969, Orazio DiMauro prepared a hand-

written ‘‘Sworn Statement”’ setting forth his wishes for the dis-

position of his property. Among other provisions the statement

included the instruction that the account at duPont ‘“‘shall

remain as it is intact. My stocks shall not be sold.”’2 Because the

statement was not a valid will, however, an intestacy resulted

upon Orazio DiMauro’s death. In May, 1970, a probate pro-

ceeding was begun in the Surrogate’s Court of New York

County,3 and shortly thereafter that Court appointed defendant

George Pavia (Pavia) as administrator of the estate. In this

capacity, Pavia retained as counsel the law firm of Pavia & Har-

court (of which he and defendant Edgar Harcourt are senior

partners). Attorney Ugo Gianformaggio (Gianformaggio) was

retained as local counsel in Siracusa, Italy, where plaintiff

DiMauro resided.

A series of communications with Mrs. DiMauro during the

next three years concerned the Harvey’s Stores stock held by the

estate. In her initial conference with Gianformaggio, in July,

1970, Gianformaggio asserts that DiMauro expressed a strong

desire that her husband’s securities be retained.4 She executed a

letter to Pavia to that effect. The letter had been prepared by

Pavia, who had recently been nominated as administrator of the

estate in New York; he had expressed his own opinion that the

securities should not be sold at that time. Harcourt asserts that

he told DiMauro by telephone on February 18, 1971, when

Harvey’s Stores stock was selling for approximately $26/share,

that a prospective purchaser wanted the entire block of stock at

a price between $20 and $22/share. DiMauro responded that

she would not consider selling the stock for less than $30/share.

A letter that Pavia wrote to DiMauro on the following day con-

firmed the information exchanged by phone. It further stated

Pavia’s conviction that the shares were not worth more than the

$7 originally paid by Orazio DiMauro, and his doubts that the

stock would remain at its current high price. Pavia specifically

“‘decline[d] any and all responsibility in this regard [holding the

stock until it reached 30}.’’

In September, 1971, DiMauro refused to sell a 90-day option

for a call of the entire block of Harvey’s Stores stock at 20, and

in November she stated that she wanted any sale to be exempt

from tax. In January, 1972, attorney Emanuele Turco (Turco)

of the Rome office of Pavia & Harcourt wrote DiMauro of the

speculative nature of the Harvey’s Stores stock, and enclosed a

copy of an article from the New York Times reporting that the

S.E.C. had filed a civil suit concerning insider-trading in

Harvey’s Stores. In September, 1972, in response to a margin

call made by duPont when Harvey’s Stores stock dropped

below 4, DiMauro authorized the sale of the other two securities

in the estate but not of any Harvey’s Stores stock. DiMauro

continued to oppose the sale of that stock after her return to the

United States in August, 1973.

Throughout this period following the death of Orazio

DiMauro, legal proceedings went forward in both New York

and Connecticut. After the New York probate proceeding was

opened in May, 1970, a probate proceeding was also begun in

the Probate Court of Bridgeport, Connecticut, in December,

1971, with Pavia again as administrator. A Connecticut succes-

sion tax return was filed in May, 1972. By order dated Septem-

ber 19, 1972, the Bridgeport Probate Court recited that the

administrator had settled his account and that the entire

amount remaining after payment of taxes, debts, fees and

expenses should be distributed to Sebastiana DiMauro.

After DiMauro’s return to this country in 1973, Harcourt

wrote her in November of his opinion that all the stock in

Harvey’s Stores should be sold, and of his intent to sell at least

enough of the stock to satisfy the remaining obligations.of the

estate, unless he heard from her to the contrary. DiMauro then

retained counsel in Connecticut, who met with Harcourt in

December. Pavia petitioned the New York Surrogate’s Court

for a final accounting and judicial settlement, and a citation to

DiMauro was issued on January 10, 1974. The citation was for

a proceeding scheduled for February 1, 1974, to settle Pavia’s

account as administrator, to fix and allow the fees of Pavia &

Harcourt, and to authorize Pavia to seli as many of the shares

7a

of stock held in the estate as would be necessary to pay the bal-

ance of fees, commissions, costs and disbursements. The cita-

tion noted that failure to appear would be taken as consent to

the proceedings, unless written objections were filed. At the

February 1 proceeding, Harcourt appeared for Pavia, and

DiMauro’s Connecticut counsel was present but did not enter

an appearance. Connecticut counsel was advised that he could,

if he desired, retain New York counsel to enter an appearance,

and was granted a two-week extension for this purpose.

According to plaintiff’s answers to defendanis’ interroga-

tories, her Connecticut counsel decided that the more proper

response was to file suit in Connecticut. The instant action was

commenced in the Superior Court for Fairfield County by a

complaint dated February 12, 1974. At the same time, DiMauro

applied for and was granted an ex parte injunction that pro-

hibited Pavia, Harcourt, and their law firm from ‘‘taking any

further action in connection with the estate, including but not

limited to any further proceedings in the Surrogate’s Court for

the County of New York.’’ The suit in Superior Court was

removed to this Court on diversity grounds by petition dated

March 11, 1974.

In September, 1975, Pavia filed an affidavit of services with

the New York Surrogate’s Court, seeking commissions and

fees. The Surrogate’s Court filed a ‘‘Decree on Accounting”’ on

October 6, 1975, on the basis of the petition, citation, and sub-

sequent proceedings in that Court during January and February,

1974. The decree stated that the citation to DiMauro had been

returned with proof of due service,5 that Pavia had rendered his

account to the Surrogate under oath on the return date of the

citation, and that no objections had been made to the account.

The decree set forth the administrator’s commissions and costs

and the legal fees that were being allowed; it authorized the sale

of a sufficient number of shares held by the estate to satisfy the

payments; it ordered Pavia to transfer to DiMauro all cash and

securities remaining in his hands after the payments; and it

ordered the account judicially settled. The distributions to

DiMauro were completed by March, 1976.

DiMauro’s general allegations in this suit are that the final

account of Orazio DiMauro’s estate was filed negligently with

the Bridgeport Probate Court, in failing to exhibit the true

nature of the estate (Count Twelve of the Complaint), that

Pavia failed to administer the estate faithfully in accordance

with his legal obligations (Count Thirteen), and that the firm of

Pavia & Harcourt failed to advise the administrators of the

estate with the care required of the legal profession (Count

Fourteen). More specifically, DiMauro’s Complaint asserts that

Pavia failed to make the distribution of estate assets ordered by

the Probate Court (Count One); and that the affidavit of return

stating that such distribution had been made was misleading

and fraudulent (Count Two). The defendants are charged with

having caused financial loss to the estate by their failure to pay

the claims against the estate (in particular, the margin account

at duPont) that the final account submitted to the Probate

Court recited as having been paid (Count Three), to administer

the estate in timely fashion (Count Four), to divest the Harvey’s

Stores stock within a reasonable time (Count Six), and to rein-

vest and diversify the estate’s holdings to cause an appreciation

in the value of the estate (Count Seven). The defendants were

allegedly negligent in their attempt to administer the estate in

New York (Count Five), and in their application to the Surro-

gate’s Court for permission to sell sufficient shares held by the

estate to cover fees and costs, in violation of the decree of the

Probate Court (Count Eleven). Finally, negligence is charged in

Pavia’s submission for administrator’s commissions ($15,000)

and Pavia & Harcourt’s submission for attorney’s fees ($32,000)

that are alleged to be unreasonably high (Counts Ten and Nine,

respectively). For all of this, the Complaint seeks injunctive

relief, an accounting, removal of Pavia as administrator, and

damages of $1,000,000.

In deciding this motion for summary judgment, the Court

has the benefit of a recent restatement by the Second Circuit of

the law applicable to such motions. S.E.C. v. Research Auto-

mation Corp., 585 F.2d 31 (2d Cir. 1978). The Rule governing

summary judgment procedures, Fed. R. Civ. P. 56(e), provides

that when a summary judgment motion is supported by deposi-

9a

tions, affidavits, answers to interrogatories, and admissions,

‘an adverse party may not rest upon mere conclusory allega-

tions or denials.’’ S.E.C. v. Research Automation Corp., supra,

585 F.2d at 33. The opposing party must support all allegations

made in the pleadings with particular facts and arguments. [bid.

In the light of the material provided, the Court can ‘‘recognize

the realit[ies]’’ of the case before it, id. at 34, to the extent that

no genuine issues of fact remain to be resolved. A party will not

be allowed to create his own ‘‘genuine’”’ issue of fact, however,

simply by presenting internally contradictory statements (in

affidavits and depositions, for example). Perma Research &

Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.

1969). See also Radobenko v. Automated Equipment Corp.,

520 F.2d 540, 544 (9th Cir. 1975).

Estoppel by Judgment

As an initial objection, DiMauro claims that the instant

motion must fail for what is essentially an alleged error of plead-

ing. The doctrine of res judicata bars relitigation of a cause of

action once judgment has entered; the judgment includes claims

that were actually made or might have been made. Collateral

estoppel bars relitigation, in a subsequent suit brought on a dif-

ferent cause of action, of particular issues actually litigated and

determined by the prior final judgment and essential to it. 1B

Moore’s Federal Practice { 0.405 [1], at 621-23 (2d ed. 1974).

Because the defendants have assertedly pleaded collateral estop-

pel on the basis of prior probate proceedings and because noth-

ing was actually litigated in those proceedings, DiMauro argues

that she is not barred from this action.

It is true that a party relying on res judicata must plead that

doctrine affirmatively. North Central Truck Lines, Inc. v.

United States, 381 F. Supp. 1217, 1220(W.D. Mo. 1974), aff'd,

420 U.S. 901 (1975). The purpose of the requirement is to ensure

that a party against whom the doctrine is pleaded is adequately

apprised that it is to be used. J/bid. (pleading of res judicata

includes and gives notice of collateral estoppel defense); see also

10a

Crowe v. Cherokee Wonderland, Inc., 379 F.2d 51 (4th Cir.

1967). The defendants’ pleading in this case gave ample notice

to DiMauro that they would rely on the judgments in probate

proceedings as defenses to the instant suit. The second affirma-

tive defense included with defendants’ answer stated that ‘‘[t}he

plaintiff had the full opportunity to raise the matters alleged in

this action in the probate proceedings in Connecticut and New

York....’’ It noted that the New York action was not yet con-

cluded, and that the opportunity to litigate still existed in the

Surrogate’s Court.6 Thus, no surprise can be claimed by the

application of either collateral estoppel or res judicata.7

The same reasoning defeats DiMauro’s contention that sum-

mary judgment must be denied because it is based upon an affir-

mative defense filed in January, 1975, nine months before the

Surrogate’s Court decree on which the summary judgment

motion relies. The affirmative defense, when asserted, noted

that DiMauro could have brought and could still bring her

objections before the Surrogate’s Court. The proceedings in

that court, naturally including the final decree that would end

them, were relied on as a bar to the instant suit. Moreover, the

motion for summary judgment not only referred to the affirma-

tive defense, but also mentioned explicitly the decree of judicial

settlement. A decree may be relied upon as res judicata although

it is rendered after the initiation of proceedings in which the bar

is then asserted. See Princess Lida v. Thompson, 305 U.S. 456

(1939).

Beyond the pleading issue, DiMauro asserts that the proceed-

ing in the New York Surrogate’s Court cannot bar the instant

action because of the defendants’ alleged negligence in under-

taking the administration of her husband’s estate there before

opening the probate proceedings in Connecticut. The New York

court’s jurisdiction is said to have been defective, and its decree

therefore not binding.

The surrogate’s court of each county in New York is given

jurisdiction by statute over the estate of any non-domiciliary of

the state who leaves property within that county. N.Y. Surr. Ct.

lla

Proc. Act § 206 (McKinney 1967). A debt in favor of a non-

domiciliary against a domiciliary is deemed personal property.

Id. § 208. Since the securities constituting the only asset of

Orazio DiMauro’s estate in this country were physically located

in New York County, see id. § 208 (4), and since the holding of

the securities in street name by duPont in New York City consti-

tuted a debt of the firm to Orazio DiMauro, the statutory

requirements for the exercise of jurisdiction by the Surrogate’s

Court in New York County were met.

Defendants’ actions in bringing the Surrogate’s Court to exer-

cise its jurisdiction were not negligent. To be sure, the Surro-

gate’s Court has discretion in deciding whether to accept appli-

cations for original probate of estates of non-domiciliary dece-

dents. See Cornell v. Delehanty, 18 N.Y.S.2d 153 (Sup. Ct.

1940). And it may be proper to decline jurisdiction over an

estate where no substantial tangible personalty of a decedent

exists within the estate and intangible property exists in the state

of domicile. See Jn re MacKean’s Will, 18 N.Y .S.2d 230 (App.

Div. 1940). But the exercise of jurisdiction has been held proper

where a Connecticut decedent left personal property in New

York, although she named as executor of her will a non-resident

of New York. Jn re Shailer’s Estate, 172 N.Y .S.2d 724 (Sur. Ct.

1957). The interests of New York in Orazio DiMauro’s estate

are at least as strong. Especially where the Surrogate’s Court in

fact exercised its statutory jurisdiction, the defendants cannot

be said to have been negligent for asking it to do so. The Con-

necticut Supreme Court has recognized the jurisdiction of the

New York courts in an analogous case, where all assets of a

trust were located in New York and the issue presented was

validity of the exercise of a power of appointment, in Connecti-

cut, by a Connecticut domiciliary. Morgan Guaranty Trust Co.

v. Huntingdon, 149 Conn. 331 (1962).8

DiMauro argues that even if the Surrogate’s Court proceed-

ing was properly undertaken, she cannot be bound by the final

decree if she failed to receive notice and to appear. By her own

admission and by recital of the decree of the Surrogate’s Court,

however, DiMauro did receive notice of the hearing scheduled

12a

for the purpose of closing the administrator’s account. Her

Connecticut counsel came to the court at the scheduled time,

though he did not enter an appearance. The notice was constitu-

tionally adequate to accord DiMauro an opportunity to appear

and be heard, in the orderly process of the determination of the

interests of all claimants, resident and nonresident, in the estate

of her husband. See Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306, 313 (1950).

Anyone on whom process must be served in accounting pro-

ceedings may file objections to them. Jn reWoods’ Estate, 320

N.Y.S.2d 347 (App. Div. 1971). The failure to file objections in

those proceedings forecloses later objection; any different rule

would obliterate the benefits of judicial settlements of an

accounting. Jn re Weir’s Will, 46 N.Y.S.2d 551, 556 (Sur. Ct.

1943). In this case, it was a strategic decision of counsel rather

than lack of notice that resulted in DiMauro’s failure to appear

in a formal manner. Having declined the opportunity provided

to file objections to the proposed accounting, she must be

bound by the decree to the extent of one who does appear upon

notice. Hochster v. City Bank Farmers Trust Co., 24 N.Y.S.2d

110 (App. Div. 1940), aff'd, 288 N.Y. 588 (1942).

In both Connecticut and New York, the decree of a Court of

Probate or a Surrogate’s Court is conclusive as to all matters

that it embraces. Nikitiuk v. Pishtey, 153 Conn. 545, 551

(1966); Kochuk v. Labaha, 126 Conn. 324, 329 (1940). See also

In re Williams’ Estate, 151 N.Y.S.2d 561 (App. Div. 1956).9 A

final accounting, specifically, creates an estoppel with respect to

items brought within the administration of the estate. Kochuk

v. Labaha, supra, 126 Conn. at 329. The estoppel reaches only

matters that are clearly and specifically set out, and are definitely

ascertainable from a reading of the account and decree. Jn re

Williams’ Estate, supra, 151 N.Y.S.2d at 563; In re Grace’s

Estate, 308 N.Y.S.2d 308 N.Y.S.2d 33 (Sur. Ct.), aff’d, 315

N.Y.S.2d 816 (App. Div. 1970). Within that scope, however,

the decree is conclusive both as to objections to the accounting

that were actually raised and determined and as to matters that

could have been raised. Jn re Baker’s Estate, 292 N.Y.S. 122

l3a

(App. Div. 1936); Jn re Blake’s Will, 46 N.Y.S.2d 549, 550 (Sur.

Ct. 1943). Cf. 3 A. Scott, The Law of Trusts, § 220, at 1765 (3d

ed. 1967) [hereafter ‘‘Scott on Trusts’).

The estoppel effect of prior decrees has usually been discussed

in a coniext where those decrees emerged from a release settle-

ment, or actual litigation involving all interested parties. See,

e.g., In re Schaefer, 18 N.Y.2d 314 (1966); Jn re Jones’ Will,

177 N.Y.S.2d 307 (Sur. Ct. 1958), aff’d, 190 N.Y.S.2d 166

(App. Div. 1959); Grossman v. Kass, 124 N.Y.S.2d 416 (Sup.

Ct. 1953). The estoppel arises not because of the type of pro-

ceeding, however, but from the opportunity to raise objections.

Once presented with that opportunity, a party must avail him-

self of it or be barred from raising it in later proceedings. The

citation to DiMauro concerning the proceedings in Surrogate’s

Court called attention to the proposed settlement of the admin-

istrator’s account and to the proposed sale of sufficient shares

of stock to cover expenses. This provided ample notice that

matters would be determined as to which objections of negli-

gence in investment management would be relevant. Failure to

object establishes acquiescence in the accounting. See Jn re

Emmerich’s Estate, 23 N.Y.S.2d 42 (Sur. Ct. 1940). Cf. In re

Baker’s Estate, supra; In re Blake’s Will, supra.

The fact that individual securities were not actually listed in

the citation does not constitute any defect in the notice. Had

DiMauro chosen to come into court, she could have disputed

the specific investments, in particular the retention of the

Harvey’s Stores stock. The accounting need not include overly

minute details; an objecting party has some duty to make timely

inquiry, once put fairly on notice. Jn re Van Deusen’s Will, 196

N.Y.S.2d 737, 743 (Sur. Ct. 1960). Having decided, upon

notice, to forego her chance to appear in the Surrogate’s Court,

DiMauro is nonetheless bound by its decree.

The scope of the decree includes administrator’s commissions

and attorney’s fees. Especially when the administrator’s com-

missions allowed by the Surrogate’s Court were less than the

amount permissible by statute, see N.Y. Surr. Ct. Proc. Act

14a

§ 2307 (McKinney 1967 and Supp. 1978), there is no reason to

reopen the decree in this regard. See Jn re Rosenthal’s Estate,

252 N.Y.S. 596 (Sur. Ct. 1931). The Surrogate similarly acted

well within his discretion in allowing attorney’s fees in the

amount sought. See Krimsky v. Lombardi, 357 N.Y.S.2d 671

(Sup. Ct. 1974), aff’d, 377 N.Y.S. 2d 785 (App. Div. 1976); In

re Baker’s Estate, supra. These principles conclude DiMauro’s

claims concerning commissions and fees, quite aside from the

argument that she is equitably estopped to make these claims by

her signing on April 18, 1972, a letter agreeing to commissions

and fees in the amounts awarded.

Formally, the Surrogate’s Court proceeding is in rem. In re

Kramsky, 16 N.Y.S.2d 185 (Sur. Ct. 1939). But labels are not

dispositive of the issues in this case. Cf. Mullane v. Central

Hanover Bank & Trust Co., supra, 339 U.S. at 312. A judicial

proceeding to settle fiduciary accounts settles every right that a

beneficiary would otherwise have against the fiduciary for

improper management of funds held during the period of the

accounting. /d. at 311; cf. In re Hoagland’s Estate, 74 N.Y.S.2d

156 (Sur. Ct.), aff’d, 74 N.Y.S.2d 911 (App. Div. 1947), aff'd,

297 N.Y. 920 (1948). This is not inconsistent with the rule that a

proceeding in rem to determine interests in property is conclu-

sive upon persons named as defendants with respect to interests

in the property only. Sherman v. Kirshman, 369 F.2d 886 (2d

Cir. 1966). A probate proceeding for a final accounting names

no one as defendant, but adequate notice brings interested

parties to court, nonetheless. And its results should be conclu-

sive to the same degree as those of the decree settling the trustee’s

accounts in Mullane.

The jurisdiction of the probate court is not based on and lim-

ited to attachment of specific property when a party is not pres-

ent to confer personal jurisdiction on the court. Cf. East Asiatic

Co. v. Indomar, Ltd., 422 F. Supp. 1335 (S.D. N.Y. 1976).

Rather, the probate court in this case had before it the entire

assets of the estate in this country and the fiduciary in charge of

their disposition. Its jurisdiction is in the nature of in rem or

quasi in rem to the extent that it determines the interests of

15a

beneficiaries in the property in question, and in the nature of in

personam as to the claims of the beneficiaries against the

administrator arising out of the administration of the funds. Cf.

5 Scott of Trusts, supra, § 568, at 3809. This is so even though

the beneficiaries are not resident and are not personally subject

to the court’s jurisdiction as to claims against them. bid. This

principle was articulated in Mullane in the context of the admin-

istration of a common trust fund. Extending it to trusts and

fiduciary relationships in probate settings in general is justified

by the same pervasive state interests in administering in an

orderly fashion trusts and estates created under the auspices of

its laws, and in making the administration proceedings conclu-

sive to ensure stability for the funds administered and for the

administrators.

DiMauro could have litigated in the Surrogate’s Court pro-

ceeding the issues she raises in this suit other than those involved

in the five counts that concern particularly the proceedings in

the Connecticut Probate Court.10 With those exceptions,

DiMauro’s entire suit raises questions of management of estate

assets by the administrator, and of legal advice by the law firm

retained as counsel in the administration process in New York.

A similar situation was presented in Krimsky v. Lombardi,

supra, where a final settlement entered by the Surrogate’s Court

was held to preclude a later malpractice suit by executors

against the law firm they had retained. The final decree dealt

expressly with such matters as estate taxes, guardians’ allow-

ances, and attorney’s fees, and therefore barred the malpractice

allegation of overpayment of estate taxes. The count alleging

loss of estate assets from negligence (specifically, alleged incor-

rect advice concerning the executors’ power to continue the high

risk business owned by the decedent) was also barred because

such matters about corporate transactions were necessarily

comprehended in the express provisions of the decree.!1 The

same bar operates here.

The bar is recognized in courts of other jurisdictions. Con-

necticut courts give full faith and credit to judgments of the Sur-

rogate’s Court in New York, at least in circumstances where

16a

decision has been rendered after a hearing at which both plain-

tiff and defendant appeared. Rathkopf v. Pearson, 148 Conn.

260 (1961). There would be no justification to deny full faith

and credit to the judgment because a party with notice of the

proceedings chose to stay away from them. To the contrary,

any rule denying full faith and credit to a judgment in that situa-

tion would frustrate the constitutional full faith and credit pro-

vision, by encouraging interested parties with notice to avoid

any proceeding in which they doubted their chances of success.

Thus, adequate notice permits a probate court to adjudicate a

person’s claims in the estate and against the administrator. The

judgment rendered is entitled to full faith and credit in the

courts of another state even though the person with notice

failed to appear. Blum v. Probate Court of Chittenden County,

Vermont, 575 F.2d 50 (2d Cir. 1978), vacated on other grounds,

F.2d ______ (2d Cir. Jan. 17, 1979). See also 3 Scott on

Trusts, supra, § 220, at 1768. By this rule, the decree of the Sur-

rogate’s Court concerning the estate of Orazio DiMauro must

receive full faith and credit in the courts of Connecticut.

DiMauro claims that fraud in the procurement of the Surro-

gate’s Court decree strips it of all effect as a bar to this suit. On

or about February 12, 1974, the Superior Court for Fairfield

County entered an order, upon DiMauro’s application, enjoin-

ing the defendants from taking any further action in connection

with her husband’s estate, including the proceeding scheduled

for February 15, 1974, in the Surrogate’s Court. None of the

defendants received prior notice of the application; none

appeared before the injunction issued. In September, 1975,

Pavia filed with the Surrogate’s Court an affidavit of services,

and the Surrogate’s Court issued its final decree during the fol-

lowing month. DiMauro asserts that the affidavit of services

was submitted in violation of the ex parte injunction, and that

any decree relying on the affidavit was fraudulently induced.

A decree of a probate court may be set aside for reasons of

fraud. In re Van Deusen’s Will, supra, 196 N.Y.S.2d at 740;

Folwell v. Howell, 117 Conn. 565, 569 (1933). See also Conn.

Gen. Stat. § 45-9 (allowing collateral attack on a probate court

17a

decree only for fraud); 3 Scott on Trusts, supra, § 220, at 1766,

and § 260, at 2218. But the decree of the Surrogate’s Court was

not obtained in violation of an outstanding injunction, and was

therefore not fraudulently induced. Although a ‘“‘temporary

restraining order’’ (TRO) does not exist in those terms in Con-

necticut practice, a temporary injunction granted without prior

notice and hearing, see Conn. Gen. Stat. §§ 52-471, 52-473, is

equivalent to the federal order governed by Rule 65(b), Fed. R.

Civ. P. See 2 E. Stephenson, Connecticut Civil Procedure

§ 268b, at 1109 (2d ed. 1970); cf. Morning Telegraph v. Powers,

450 F.2d 97, 99 (2d Cir. 1971) (drawing distinction between

TRO and preliminary injunction). Such a temporary order

should continue only for the time required to notice and hold a

hearing. See Conn. Gen. Stat. §§ 52-473, 52-475; 2 E. Stephen-

son, supra, § 268b, at 1109.

Upon removal of this case from the state court system, the

order of the Superior Court remained in effect. 28 U.S.C. §

1450. But the removal did not transform the order of limited

duration into a federal court injunction of unlimited duration.

Rather, the ex parte TRO issued by state court prior to removal

remained in force no longer than the time limitations imposed

by Rule 65(b). Granny Goose Foods, Inc. v. Teamsters Local

70, 415 U.S. 423 (1974). According to these limitations, the

order ‘‘died a natural death,’’ see id. at 440, before April,

1974.12

Rule 65(b) places on the party obtaining the TRO the burden

of applying for and presenting its case to justify a preliminary

injunction. DiMauro did not seek the hearing required for

injunctive relief beyond the TRO, and the defendants did not

consent to an indefinite extension of the TRO. Cf. New York

Telephone Co. v. Communications Workers of America, 445

F.2d 39 (2d Cir. 1971). The defendants in fact filed on May 16,

1975, a motion to confirm the expiration of the temporary

order. 13

The defendants moreover assert that DiMauro forced them to

return to the Surrogate’s Court, by moving in this Court on

18a

May 20, 1975, that defendants be compelled to convey to her

the balance of the estate. After this Court granted DiMauro’s

motion and ordered a transfer to her of all but $47,000 (the

amount already allowed by the Connecticut Probate Court and

sought from the New York Surrogate’s Court for administra-

tor’s commissions and legal fees), Pavia filed for a final account-

ing to close the Surrogate’s Court proceedings. Whether or not

he was required to do so, the petition to the court where admin-

istration of the estate had been first and properly undertaken

was consistent with the decree of this Court.!4 Compare Adams

v. Williamson, 150 Conn. 105 (1962) (executrix denied res

judicata benefits of probate court decree based on her previous

accounts that yielded admittedly excessive payments to her).

The actions of the administrator reflect due deference to the

courts involved rather than contempt and deception. The estop-

pel effect of the Surrogate’s Court decree is not impaired by any

fraud. The estoppel extends to Counts Four, Five, Six, Seven,

Nine, Ten, Eleven, Thirteen, and Fourteen.

The same principles of estoppel by judgment apply to the

proceedings in the Connecticut Probate Court. The decree of

final accounting in that Court recites that it issued upon due

notice and hearing, see Conn. Gen. Stat. § 45-267, and

DiMauro has not made any claim to the contrary. The conclud-

ing proceedings offered an opportunity to object to Pavia’s

final account. Specifically, questions could have been raised

about negligence for an alleged failure to exhibit the true nature

of the estate in the final account and accompanying inventory.

Because they were not raised, they are now barred by the decree,

and Count Twelve of the Complaint, which presses these claims,

is therefore dismissed. Specific complaints about the failure to

pay off the margin account of duPont and other debts of the

estate could also have been made. The Probate Court decree

thus disposes of Count Three, also.

Estoppel in Pais

Central to DiMauro’s Complaint is the claim that the defen-

dants retained the stock in Harvey’s Stores when they should

19a

not have. In this motion defendants make the argument, inde-

pendent of that concerning estoppel by judgment, that

DiMauro ‘‘expressly directed, induced, acquiesced in and con-

sented to’’ the actions of defendants about which she com-

plains. The defendants do not dispute that prudent investment

would have involved early sale of this speculative stock, which

comprised the bulk of the estate. Rather, they contend that the

stock was retained because of DiMauro’s actions and that she is

thereby equitably estopped to base claims upon the retention.

When one party does or says something upon which he

intends another to rely and act, and that second party does so

rely and change his position to his detriment, the conduct of the

first party estops him to complain about the action taken. See

Mercanti v. Persson, 160 Conn. 468, 477 (1971); Lynn v. Lynn,

302 N.Y. 193 (1951). Although an administrator must in normal

circumstances sell stock owned by a decedent within a reason-

able time and at the best price obtainable by reasonable dili-

gence, Stark v. National City Bank, 278 N.Y. 388 (1938),

encouragement or acquiescence by a beneficiary in the retention

of securities that eventually lose value prevents the beneficiary

from bringing legal action for the loss. Jn re Garvin’s Will, 256

N.Y. 518 (1931). By explicit holding in Connecticut, where an

administrator, acting in good faith and with ordinary care for

the good of the beneficiaries, deviates with their consent from

the strict line of his duty and loss results, the consenting bene-

ficiaries cannot charge him with the loss. Mathews v. Sheehan,

76 Conn. 654, 662 (1904).

The rule has been applied to situations resembling the one

presented here, where stock held by a decedent at the time of his

death was held after his death by executors or administrators,

with the approval of beneficiaries. See Jn re Garvin’s Will,

supra; In re Weston, 91 N.Y. 502 (1883). The beneficiaries in Jn

re Kent’s Estate, 261 N.Y.S. 698 (Sur. Ct. 1932), aff'd, 284

N.Y.S. 976 (App. Div. 1935), directed that stock be retained

with the expectation that they would take it over in kind at the

completion of administration of the estate. Their directions

barred any complaint, when the stock declined in value. Jd. at

704-05.

20a

DiMauro instructed Pavia to retain the securities in her hus-

band’s estate. The letter that she signed to Pavia in July, 1970,

had been prepared by Pavia’s law office and reflected his own

opinion that the stock should not then be sold (see letter to

Gianformaggio of June 23, 1970). But there is no evidence to

support a claim that Pavia was not acting in good faith and with

proper care. Having only been nominated as administrator in

New York, Pavia would reasonably have wanted time to review

the estate’s holdings before acting. The Harvey’s Stores stock,

which at the time of Orazio DiMauro’s death was selling at

nearly 13, dropped thereafter and reached 7 by the end of the

year. There is no allegation that Pavia sought any personal

financial gain by advising that the securities be retained at the

time of his apr ointment.

By the beginning of 1971, correspondence between Pavia and

DiMauro shows clearly that Pavia urged DiMauro strongly to

sell the Harvey’s Stores stock at that time. From a market value

of approximately 7 on January 25, 1971, the stock rose steadily

and quickly to approximately 26 on February 18, 1971. That

DiMauro carefully considered the matter of retaining the stock

is shown by her insistence that it not be sold for less than 30.15

She remained aware of the movements of the stock and the pos-

sibilities of selling it. In her letter of November 12, 1971, to her

attorneys she noted that Turco had talked with her about selling

the stock at 20; she wanted particularly to know whether any

sale would be tax exempt. A letter to Pavia on November 26,

1971, asserted that ‘*I wish that the sale of the block of Harvey’s

Stores be exempt from Income Tax.’’ The prices she wanted for

the sale of stock may have been unrealistically high at the times

they were mentioned, !6 cf. In re Pinney’s Estate, 294 N.Y.S. 29

(App. Div. 1937), aff'd, 278 N.Y. 507 (1938), but the estoppel

here arises from the fact that DiMauro was taking such an

active and detailed interest in the movements of the stock, not

that she was an inaccurate market analyst.

If DiMauro’s conduct is not held to give rise to an estoppel,

legal liability might be asserted for a failure to follow instruc-

tions to retain securities, in the event stock had been sold and

2la

then rose in price. Cf. In re Weston, supra, 91 N.Y. at 511. An

administrator or executor is entitled to expect stability in his

role as fiduciary, which calls for him at once to act disinter-

estedly in the best interests of the estate and the beneficiaries,

and also to heed the directions of a sole beneficiary. Even com-

munications that are not express directions will bind a bene-

ficiary, if the fiduciary could reasonably interpret them as

authorizing and consenting to the actions that he then takes in

reliance on them. See Jn re Pinney’s Estate, supra, 294 N.Y.S.

at 38. The fact that a beneficiary consents to actions that would

normally be illegal for a fiduciary estops the beneficiary to com-

plain, although a probate court could not itself authorize or

condone the actions. See Jn re Packard’s Estate, 261 N.Y.S. 580

(Sur. Ct. 1932) (remaindermen of trust are estopped by their

previous consent to assert illegality of investments of trustee

that were against terms of the trust).

The communications between DiMauro and the defendants

show clearly that she wished the stock in Harvey’s Stores not be

sold, except at prices that were unrealistic. Her unmistakable

intentions obviously put Pavia in a difficult position. His appre-

ciation of this bind is reflected in the February 19, 1971, letter

to DiMauro, in which he urged her to accept the then-pending

offer for her Harvey’s Stores shares (at 20), asserted that he was

‘absolutely convinced’’ that the shares were not worth more

than the $7 originally paid for them, and declined responsibility

for any future drop in price. That he did not decline responsibil-

ity as fiduciary in general is clear from his subsequent continued

efforts to negotiate a sale of the stock as the price did in fact

drop, and his frequent communications with DiMauro about

the securities still held in the estate. Defendants showed no bad

faith in their dealings with DiMauro. Any stock that Pavia did

sell was for the purpose of paying estate taxes and meeting other

expenses of administration.

DiMauro asserts that she could not have given her own

instructions to hold the stock or to seek a certain price or to sell

under specified conditions, because she lacks the education

necessary to understand the transactions involved. The corollary

22a

of these assertions is that she automatically followed her law-

yer’s advice and signed whatever documents they put in front of

her.

Her own deposition, despite internal inconsistencies, contra-

dicts this position. She discussed margin accounts and selling

stock ‘‘to cover the margins’’ (after asserting earlier that she did

not know what a margin account was). When a sale of stock

was required by a margin call in September, 1972, she wrote to

Pavia to be cautious in the sale of her 11% of the company

‘*because I do not wish to depress the stock....’’ She had dis-

cussed earlier the sale of a “‘block’’ of the Harvey’s Stores

stock, and was concerned about the tax treatment of the sale

(she wanted a tax free sale). She knew that ‘‘after six months

income taxes are paid...only on half the net earnings or net

income.’’ She understood that confirmation slips are sent to

customers after stock transactions, and used the slips to prepare

detailed schedules for income tax purposes. Her failure to con-

tinue formal schooling beyond the fifth grade obviously did not

prevent her from developing considerable sophistication con-

cerning investments. DiMauro was fully capable of giving direc-

tions about investments to Pavia, and Pavia was reasonable in

the way he understood her considered opinions and in acting in

accordance with the instructions and indications he received

from her.

DiMauro is equally estopped to take issue with the adminis-

trator’s commissions and attorney’s fees in connection with the

estate administration. Aside from the estoppel by judgment of

both the Connecticut and New York courts (which allowed the

identical amounts, since no additional fees and commissions

were sought by virtue of the second proceeding), an estoppel

arises from the agreement that DiMauro signed on April 18,

1972. That letter approved proposed payments of $60,000 for

attorney’s fees and $15,000 for administrator’s commissions.

The letter was prepared by the offices of Pavia & Harcourt.

DiMauro has represented that she signed the letter on the

assumption that the administrator and attorneys had exercised

reasonable diligence and shown reasonable care in handling the

23a

estate. This Court finds no indication that the defendants acted

otherwise. DiMauro is bound by the letter she executed upon

that assumption and with the knowledge, through correspon-

dence a few months earlier about the tax consequences of a sale

of stock, that the Harvey’s Stores shares had already dropped

as low as 12 (see letter from Pavia to DiMauro dated December

13, 1971).

Despite the factual foundation for an estoppel, DiMauro

expresses the equitable defense of unclean hands to prevent the

application of this doctrine of equity. The principle of unclean

hands is usually applied only to prevent affirmative relief,

because of some fraud or deceit relating to the matter in issue.

See Precision Instrument Manufacturing Co. v. Automotive

Maintenance Machinery Co., 324 U.S. 806 (1945); cf. McGrath

v. Hilding, 41 N.Y .2d 625 (1977). The fraud on which DiMauro

bases her defense is the defendants’ valleged violation of the

injunction against proceeding with the administration of the

estate of Orazio DiMauro. It is not clear that such a fraud

would pertain to the retention of securities at the behest of the

beneficiary here. But the issue need not be resolved, since it has

already been decided that the defendants did not act fraudu-

lently in closing the estate in the Surrogate’s Court.

DiMauro is therefore estopped to pursue the claims presented

in Counts Three, Six, Seven, Nine, and Ten. The estoppel also

extends to any claims included in Counts Thirteen and Fourteen

that Pavia failed to act faithfully as administrator, and that

Pavia & Harcourt failed to advise the administrator with proper

care, by virtue of the retention of Harvey’s Stores stock.

Mootness and Failure to State a Claim

The defendants have moved for summary judgment on

Counts One, Two, and Eleven, asserting that the claims pre-

sented there have become moot since this action was begun.

Count One complains of Pavia’s failure to distribute to

DiMauro the assets of the estate remaining after satisfying

claims and expenses, pursuant to the order of the Bridgeport

24a

Probate Court. Since those assets have in fact been distributed,

albeit after considerable dispute between the parties and after

further order of this Court on June 12, 1975, the claims pre-

sented in Count One have become moot. The fact that the sum

of $47,000 was withheld from distribution, as allowed in the lat-

ter order, does not alter this result. The final account to the Pro-

bate Court included the $47,000 in administrator’s commissions

and lawyer’s fees as claims against the estate. Thus, the net

amount available for distribution to DiMauro never included

that disputed sum.

It should be noted that the amount of money available for

distribution, even at the date on which the Probate Court

entered its order of distribution, was substantially less than the

amount listed by that Court. The order, and the administrator’s

accounting and succession tax return on which it was based,

assumed an asset valuation as of the death of Orazio DiMauro.

At the time of his death, Harvey’s Stores stock had a market

value of nearly 13. At the time the Probate Court entered its

order, the market value had fallen below 4. Since the stock in

that one company comprised the bulk of the estate, the value of

the entire estate had decreased significantly by September 19,

1972.

The retention of the stock had been brought to the attention

of the Probate Court in explicit terms in the Connecticut succes-

sion tax return (since the original is filed with that Court). The

assets, claims and expenses listed in the final account were iden-

tical to those in the tax return, with the sole addition of the

amount of tax computed as owing in Connecticut. ‘“The mere

fact that the account shows property on hand for distribution at

a certain dollar figure does not establish a monetary liability on

the fiduciary to the distributees in that amount.” G. Wilhelm,

Connecticut Estates Practice: Settlement of Estates, § 319, at

448 (1974) [hereafter ‘‘Estates Practice’’|. The decree settling

the account establishes that the fiduciary has the items listed in

his accounting, not that they carry the same value. Ibid. See

also Sellew’s Appeal, 36 Conn. 186, 193 (1869); cf. Sachs v.

Feinn, 121 Conn. 77, 82 (1936). Thus, in listing the amount

25a

available for final distribution, the Probate Court would have

understood in this case that the property still held, in kind,

might have a value greater or less than the dollar amount listed.

**Distribution’’ in this context does not mean disbursement to

beneficiaries. It has the specialized meaning of apportionment

among beneficiaries. Rather than transferring assets, distribu-

tion simply converts the common ownership of all distributees

in all estate assets into separate equitable ownership of specific

assets. Estates Practice, supra, § 325, at 450-60, and § 348, at

493; see also Mack’s Appeal, 71 Conn. 122, 128-29 (1898);

Kingsbury v. Scovill, 26 Conn. 349, 352-53 (1857). In DiMauro’s

situation as the sole beneficiary, the Probate Court order of dis-

tribution, dated September 19, 1972, could be quickly carried

out as a formal matter. The return required by that order and

by statute, Conn. Gen. Siat. § 45-19, was duly made by Pavia.

For these reasons, Count Two of the Complaint, which asserts

that Pavia’s affidavit of return was misleading and fraudulent

in saying that distribution had been made, lacks merit.

Count Two also lacks merit insofar as it complains of a failure

to disburse the property distributed to DiMauro. This count

relies on the assertion in the signed affidavit ‘‘that all moneys

and property...have been paid over and distributed to the per-

sons entitled thereto according to law...and the orders of said

[Probate] Court, and that so far as the fiduciary has any knowl-

edge said estate is now fully administered and settled.’’ As

explained above, property had been distributed as ordered by

the Probate Court. No statutory provision exists in Connecticut

for a return by a fiduciary showing that he has delivered and

transferred assets in accordance with the order of distribution

and return of distribution. See Merwin’s Appeal, 75 Conn. 33,

36 (1902); Estates Practice, supra, § 350, at 496. But the probate

court may require a return of final settlement, to show actual

disbursement. /bid.; cf. Morse v. Ward, 92 Conn. 286, 292

(1917). To disburse the property in this case, however, Pavia

needed the additional authorization of the Surrogate’s Court in

New York, which also had jurisdiction over the estate.

26a

Connecticut statutes do not deal with this situation, but the

leading practice book recognizes the gap between Connecticut

law and that of states like New York, which allow original pro-

bate proceedings of non-domiciliaries’ estates if property is

located within their jurisdiction. G. Wilhelm, Connecticut

Estates Practice: Death Taxes, § 66, at 160 (1974). Since the

administrator in New York would be liable for succession taxes

in Connecticut in a case such as this, ibid., he must realistically

come into Probate Court in Connecticut. But he cannot in

doing so ignore the Surrogate’s Court. In this unusual situation,

distribution according to the order of the Connecticut Probate

Court would mean apportionment of the proper share of the

estate to each beneficiary, and then disbursement in those pro-

portions after approval by the Surrogate’s Court. This is pre-

cisely the course that Pavia followed, and his return to the Pro-

bate Court is taken to signify such action.

Count Eleven has already been dismissed for reasons of estop-

pel by judgment. Moreover, it rests on similar allegations to

those involved in Count Two, specifically that Pavia and Pavia

& Harcourt were negligent in applying to Surrogate’s Court for

permission to sell shares of stock to pay commissions, fees and

costs in violation of the Probate Court order of distribution.

These claims have no merit for the reasons stated previously.

The request made to the Surrogate’s Court for fees and commis-

sions did not exceed that allowed by the Probate Court. Thus,

the Surrogate’s Court allowance to sell shares to cover fees and

commissions did not diminish the estate in any greater degree

than anticipated by the final order of the Probate Court.

The defendants have moved for summary judgment on

Count Twelve for failure to state a claim upon which relief can

be granted. Already dismissed for reasons of collateral estoppel,

any claims stated in this count also fail on the merits. The final

account and inventory in the Connecticut Probate Court,

alleged to lack particularity and to exhibit the true condition of

the estate, are sufficiently precise to fulfill the purpose of the

account. They give interested parties full information regarding

the contents of the estate, and establish the property to be dis-

27a

tributed, valued at a particular date. See Marks’ Appeal, 116

Conn. 58 (1932); Estates Practice, supra, § 287, at 408-09.

Accounts that must be submitted periodically by fiduciaries

need not include updated inventories if there has been no

change in the identity of the items in the estate since the last

account accepted and approved. Conn. Gen. Stat. § 45-268.

Final accounts should be governed by the same principles.

Count Eight, not specifically addressed in the motion for

summary judgment, presents a claim of negligence arising out

of the failure to apply for a widow’s allowance for DiMauro in

the Connecticut probate proceeding. This matter could have

been raised before the closing of the estate in Connecticut, and

is therefore barred by the final decree there from consideration

in this case. Even if it could be adjudicated here, the count fails

to state a claim upon which relief can be granted. The allowance

is discretionary with the Probate Court, Conn. Gen. Stat. §§

45-250, 45-273a, and is to be given only if judged necessary for

the support of the surviving spouse. Jbid. Though ‘‘necessity’’

is broad enough to include more than maintenance of the sur-

vivor at a mere subsistence level during the administration of

the estate, see Baldwin v. Tradesmens National Bank, 147

Conn. 656 (1960), there is no indication that an allowance is jus-

tified for the sole purpose of reducing the value of the estate in

order to reduce in turn the estate taxes owing. Count Eight is

based on exactly those grounds of decreasing taxes. No allega-

tion is made that DiMauro required an allowance for her sup-

port.

In light of the decisions above, it is unnecessary to decide the

motion to dismiss the law firm of Pavia & Harcourt as a defen-

dant, for reasons of lack of personal jurisdiction.

Conclusion

The motion for summary judgment is granted. Since the deci-

sion disposes of all counts of the Complaint, judgment may

enter for the defendants.

28a

Dated at Hartford, Connecticut, this 16 day of April, 1979.

/s/ Jon O. Newman

Jon O. Newman

United States District Judge

29a

FOOTNOTES

IThe Court has before it a deposition of the plaintiff; plaintiff's

answers to defendants’ interrogatories, and defendants’ answers to

plaintiff’s interrogatories and documents produced by requests; and

affidavits, with attached exhibits, of four individuals: defendant

George Pavia (administrator of the estate of Orazio DiMauro), defen-

dant Edgar Harcourt (of the law firm of Pavia & Harcourt), Emanuele

Turco (an attorney formerly associated with Pavia & Harcourt in

Rome), and Ugo Gianformaggio (an attorney in Siracusa, Italy).

Additionally, the defendants have submitted with their motion for

summary judgment a statement of material facts as to which they

claim there is no genuine issue to be tried. The plaintiff has not sub-

mitted a statement of material facts as to which there is a contention

of a genuine issue to be tried, as required to Local Rule of Civil

Procedure 9(d).

2The statement further asserted that even if it failed to qualify as a

valid will it should still ‘‘be sufficient to show all my intentions, and

they should be applied to the letter.’’ Plaintiff DiMauro acknowledges

that her husband translated the statement into Italian for her, but she

asserts that her husband said that he would sell the stocks he owned.

30razio DiMauro’s securities, the sole assets of the estate in the

United States, were physically located in New York County. In addi-

tion, the securities were held in street name by duPont, which has its

home office in New York City. Orazio DiMauro’s last domicile was

Connecticut. The real property that he owned was in Italy, and his

testamentary statement had been written in Switzerland.

4Gianformaggio wrote, in a letter dated July 27, 1970, to attorney

Emanuele Turco at the office of Pavia & Harcourt in Rome, that

DiMauro ‘‘urgently recommends that the shares not be sold because

of her strong desire to leave them just as they were left by her deceased

husband.’’

Sin her application to the Superior Court for the ex parte injunction,

DiMauro stated that she had ‘“‘received notice that the defendants

have applied to Surrogate’s Court for the County of New York for

permission to sell shares of stock belonging to the estate.... Such pro-

ceedings...are scheduled for a hearing on Friday, February 15,

i ee

30a

6The affirmative defense did not explicitly label the doctrine to be

relied upon, though it did state that ‘‘the plaintiff is estopped from

collaterally attacking’’ the prior probate judgment in later proceed-

ings. Counsel for defendants noted at oral argument that as a

technical matter they deemed the doctrine of res judicata unavailable

where a party against whom the doctrine is pleaded in a later action

was not a formal party in the earlier action producing the judgment

relied upon. That interpretation of the law would virtually eliminate

the use of res judicata on the basis of probate proceedings where

parties in interest may not be formal parties to an adversary suit.

7Recent decisions of the Supreme Court have shown that the major

concern in deciding questions about collateral estoppel should be

whether a party has had a full and fair opportunity to try identical

issues that arise in serial proceedings. Parklane Hosiery Co. v. Shore,

U.S. 47 U.S.L.W. 4079 (Jan. 9, 1979) (offensive use

of collateral estoppel); Blonder-Tongue Laboratories, Inc. v. Univer-

sity of Illinois Foundation, 402 U.S. 313 (1971) (defensive use).

8The denomination of probate proceedings in the state of domicile as

‘*principal’’ and of those in the non-domiciliary state as ‘‘ancillary,’’

see G. Wilhelm, Connecticut Estates Practice: Settlement of Estates,

§ 23, at 39 (1974), does not alter the fact that the proceedings of

administration in different estates of a single estate are independent of

one another. In re Patenotre’s Estate, 123 N.¥.S.2d 492 (Sur. Ct.

1953). Normally the assets remaining after satisfying resident creditors

of the state of ancillary administration are transmitted to the state of

domicile, see G. Wilhelm, supra, § 60, at 78-79; but in New York it is

within the discretion of the Surrogate’s Court, in unusual circum-

stances, to direct distribution of the assets remaining after ancillary

administration to the next of kin. Jn re van Bokkelen’s Estate, 279

N.Y.S. 420 (Sur. Ct. 1935). A case like this, where the ‘‘ancillary’’

proceedings are also the original probate of an estate, certainly justi-

fies such a course.

9In this diversity case, state law is to be applied. In determining which

state’s law to apply, the Court follows the conflict of law rules of Con-

necticut. Gibson v. Fullin, 172 Conn. 407, 411 (1977). Connecticut

adheres to the usual role that the law of the forum governs questions

concerning remedies, as opposed to rights. Morris Plan Industrial

Bank v. Richards, 131 Conn. 671, 673 (1945). Proper classification

3la

can be a difficult and somewhat metaphysical task, as for example

when a statute of limitations is ‘‘so interwoven with the statute creat-

ing the cause of action as to become one of the congeries of elements

necessary to establish the right....’” Thomas Iron Co. v. Ensign-Bick-

ford Co., 131 Conn. 665, 669 (1945) (limitations statute, in such a

situation, is considered part of ‘‘right’’ rather than mere ‘‘remedy’’).

Though estoppel — both by judgment and in pais — presumably per-

tains to remedies, it is unnecessary to analyze this issue at length,

because there is no inconsistency between the law of New York and

Connecticut in these areas. Especially since the law of New York is

considerably more fully developed than that of Connecticut, in ways

that seem reasonably to indicate the analysis that Connecticut courts

would adopt if confronted with the same questions, this Court will

draw on the decisions of courts in both states to resolve the present

dispute.

10Counts One and Two concern Pavia’s alleged failure to distribute

the estate assets as ordered by the Probate Court in Connecticut, and

the allegedly misleading and fraudulent affidavit of return stating that

the distribution had been made. Count Three charges that the defen-

dants caused a loss to the estate by a failure to pay claims against the

estate that the final account to the Probate Court asserted had been

paid (specifically, the margin account at duPont). Count Eight alleges

negligence in the failure to apply to the Probate Court for a widow’s

allowance. Count Twelve alleges that the final account filed in the

Probate Court failed to exhibit the true nature of the estate.

11The fact that the Surrogate’s Court in Krimsky entered its decree

after a hearing, trial, and subsequent written agreement of settlement,

does not distinguish that case in a way that lessens its applicability

here. DiMauro had notice sufficient to allow her to make objections in

the Surrogate’s Court and to pursue litigation like that held in

Krimsky.

Ordinarily, the acceptance of an administrator’s or executor’s final

account concludes issues about the legality and propriety of invest-

ments made by the trustee. State ex rel. Beardsley v. London & Lanca-

shire Indemnity Co., 124 Conn. 416, 422-23 (1938). Only in an

unusual case, where for example an executor files an account showing

property held by the decedent as trustee under the will of a previous

decedent, is the Probate Court’s acceptance of the account more lim-

ited. Jd. at 423-24. In the latter situation, the decedent trustee is only a

conduit of the property of the first decedent, and the executor of the

32a

decedent trustee files a statement of the property found by him with-

out regard to the character of the investments. The Probate Court is

not called upon to find anything more than that the executor filed an

accurate statement of what he found.

12But cf. Standard Forms Co. v. Nave, 422 F. Supp. 619 (E.D. Tenn.

1976). In Standard Forms the state court, before the case was

removed, had granted the plaintiff an order restraining the defendant

from violating a covenant not to compete. According to Tennessee

law, a restraining order granted without notice remains in force until

otherwise ordered by the court, unless the order itself provides an

earlier termination date. The Court held that in this situation the order

was not a “‘temporary”’ restraining order and therefore did not come

within the rule of Granny Goose. 422 F. Supp. at 622. That rationale

would also distinguish Standard Forms from the instant suit, since the

order of the Connecticut Superior Court was tantamount to a TRO.

13The motion was marked off the calendar without prejudice, on

March 25, 1976.

14The petition to the Surrogate’s Court was also consistent with the

decree of the Connecticut Probate Court. See page 32 of text. The

Surrogate’s Court was aware of the previous proceedings in Connecti-

cut. Pavia applied to the Surrogate’s Court on January 3, 1972, to ter-

minate the continuation of his bond in that Court, in light of the bond

filed in connection with the proceedings in Connecticut. The final

account submitted to the Surrogate’s Court also mentioned and

described the Connecticut proceedings.

1SHarcourt’s notes of a telephone conversation with DiMauro on

February 18, 1971, state that she wanted to hold the Harvey’s Stores

shares, and that she wanted to realize $30/share in a market she felt

was going up. Pavia wrote a letter to her on the following day, con-

firming his understanding of her instructions. At her deposition,

DiMauro did not remember the letter. Earlier in the deposition, she

did recall the February, 1971, telephone conversation, where she dis-

cussed selling 5,000 shares of Harvey’s Stores stock and said that her

husband ‘‘told me that it should go up to 30.””

After the telephone conversation and Pavia’s letter of February 18,

1971, DiMauro signed a letter dated February 21, 1971, authorizing

the sale of securities sufficient to pay federal and state taxes and ‘‘to

cancel the amount of the margin debt in the [duPont] account.”’ This

33a

letter, mentioned by neither side in this suit at any time, has apparently

been taken by no one to mean that the margin account should have

been closed by sale of stock on conditions other than those mentioned

repeatedly by DiMauro.

The instructions given by DiMauro concerning the sale of stock

either barred the sale outright, imposed impossible conditions, or

operated in contradictory directions. Some correspondence indicates

clearly that DiMauro did not want the Harvey’s Stores stock sold. At

her deposition, in response to a question asking whether she had

requested or directed Pavia and Harcourt not to sell the stock at any

time between 1970 and 1973, DiMauro answered, ‘‘I never said this

word to them.’’ Her testimony clouds some issues, but does not create

a genuine issue of material fact. Cf. Perma Research & Developing

Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969). The fact remains

that she did not want the stock sold. The administrator’s and lawyers’

efforts to understand her instructions, when they became as confusing

as her later deposition, show only diligence and care.

The Court takes note of the fact that translations of documents

originally written in Italian differ in some respects. DiMauro has

objected that translations she has submitted through her counsel

differ in significant ways from those submitted by the defendants. But

a careful inspection of alternative translations of all relevant docu-

ments reveals no difference so significant, either in specific words and

phrases or in the tone and emphasis of an entire document, as to raise

a genuine issue of material fact.

16The market price at the relevant times was approximately 26 and 16,

respectively. When the offer of an option (at $1/share) was made for a

call of the entire block of stock at 20, DiMauro evidently lowered her

sights from $30/share to the range of $26-$28/share. See cable of Sep-

tember 17, 1971, from Turco to Pavia & Harcourt, and letter of Sep-

tember 21, 1971, from Turco to Harcourt.

34a

APPENDIX C

MEMORANDUM OF DECISION

ON PLAINTIFF’S MOTION TO REMAND

AND DEFENDANT’S MOTION TO DISMISS

This is an action by plaintiff Sebastiana Di Mauro against

George M. Pavia, individually and as administrator of the estate

of Orazio Di Mauro, and Edgar A. Harcourt d/b/a Pavia &

Harcourt. At least in New York, the law firm of Pavia & Har-

court was counsel to defendant Pavia in his capacity as adminis-

trator. The estate administration has proceeded to final account-

ing, and the Probate Court in Bridgeport has ordered distribu-

tion. Plaintiff, alleging that defendants have committed both

fraudulent and negligent acts with regard to the estate’s admin-

istration, seeks damages and equitable relief including an

accounting and removal of defendant Pavia as administrator.

This action was originally brought in Superior Court, Fairfield

County, Connecticut, and removed pursuant to 28 U.S.C. §

1441. Plaintiff has now moved to remand the proceedings, or a

portion therecf, to Superior Court, and defendant Harcourt

has moved to dismiss as to him for lack of jurisdiction over his

person.

Plaintiff’s motion raises the frequently presented question of

the authority of Federal district courts in probate matters. What

is clear from numerous Supreme Court pronouncements is that

Federal district courts have no jurisdiction in probate matters,

In re Broderick’s Will, 88 U.S. 503 (1874), and may not inter-

fere in the administration of the corpus or with the in rem juris-

diction of a probate court, Princess Lida of Thurn and Taxis v.

Thompson, 305 U.S. 456 (1939). They may, on the other hand,

hear inter partes dis putes which are not ancillary to probate,

Sutton v. English, 246 U.S. 199 (1918), and which ‘‘establish

the claims’’ of creditors, legatees, and heirs, Markham v. Allen,

326 U.S. 490, 494 (1946). It is not always clear on which side of

the line a particular case falls. (Compare Gaines v. Fuentes, 92

U.S. 10 (1875), with Byers v. McAuley, 149 U.S. 608 (1892)).

35a

The Second Circuit has sought to draw this line on a number

of occasions. In Sullivan v. Title Guarantee and Trust Co., 167

F.2d 393 (2d Cir. 1948), the plaintiff, suing in federal court,

alleged improper administration of a trust, and requested dam-

ages, a restoration of the corpus and an accounting. The lower

court had already granted an injunction against further pro-

ceedings in New York’s Surrogate’s Court. Finding that it was

the practice of the state Supreme Court to concentrate probate

matters in the Surrogate’s Court, the Court of Appeals voided

the injunction and suggested that the District Court deny any

further relief.

In Beach v. Rome Trust Co., 269 F.2d 367 (2d Cir. 1959), the

Court invoked the in rem/in personam test of Princess Lida,

supra, to affirm the lower court’s denial of an accounting and

distribution of an estate still in the process of administration.

However, it required that the District Court hear the plaintiff’s

claims for a declaration of ownership in certain properties and

for breach of trust against the administrator, since neither was

thought to interfere with the jurisdiction of the Surrogate’s

Court.

Both Sullivan and Beach looked to New York law to deter-

mine both the nature of Probate Court jurisdiction and what

might constitute interference with it. That this was the proper

approach was explicity affirmed in Lamberg v. Callahan, 455

F.2d 1213 (2d Cir. 1972), a case arising out of a Connecticut

probate matter. There the executor and beneficiary of a

woman’s estate sued the executor and beneficiary of her hus-

band’s estate for breach of contract to make a mutual will.

Again the court noted that federal jurisdiction was proper only

in inter partes suits that did not disrupt administration in the

probate court. The opinion went on, however, to state a some-

what more mechanical test:

The standard for determining whether jurisdiction

may be exercised is whether under state law the dispute

would be cognizable only by the probate court. If so

the parties will be relegated to that court; but where the

suit merely seeks to enforce a claim inter partes, en-

36a

forceable in a state court of general jurisdiction, fed-

eral diversity jurisdiction will be assumed.

455 F.2d at 1216.

Since in Connecticut the Lamberg suit would have been cog-

nizable in a court of general jurisdiction, the Court ruled it

could be heard in Federal district court as well.

The Superior Court is Connecticut’s principal court of gen-

eral subject matter jurisdiction. Conn. Gen. Stat. § 52-10. It

may hear all matters (of appropriate jurisdictional amount) not

exclusively placed in the Probate Court, Carter v. Carter, 153

Conn. 603, 612 (1966). It follows from the Lamberg rule that

this Court’s derivative diversity jurisdiction can be invoked

whenever the Superior Court has jurisdiction. Since ‘subject

matter jurisdiction is based on the nature of the relief sought,

Matthies v. Seymour Manufacturing Co., 23 F.R.D. 64, 78 (D.

Conn. 1959), this Court’s jurisdiction depends on the avail-

ability of the relief plaintiff requested in Superior Court.

Plaintiff seeks (1) damages, (2) injunctions against the trans-

fer of assets in the estate, against any further action by defen-

dants with regard to the estate, and requiring defendants to

transfer all of the estate’s assets in their control to plaintiff, (3)

an accounting, and (4) removal of defendant Pavia as trustee.

The Superior Court of Connecticut may entertain damages

actions against trustees for their alleged breach of duty, Detten-

born v. Hartford-National Bank and Trust Co., 121 Conn. 388

(1936). Connecticut’s Probate Court, in fact, has no such juris-

diction. Palmer v. Hartford National Bank, 160 Conn. 415, 431

(1971).

At least in a case where there is a showing of fraud, the

Superior Court may issue an injunction restraining the executor

of an.estate from ‘‘further meddling’”’ with the res, and may

even require that the property contained therein be placed in its

custody pending further orders from the Probate Court. Far-

well v. Howell, 117 Conn. 565 (1933), Miller v. McNamara, 135

37a

Conn. 489 (1949). Though the Superior Court may not, in cases

short of fraud, set aside the decree of a Probate Court or (what

is the same thing) enjoin its observance by the administrator,

State v. Blake, 69 Conn. 64 (1897), Miller v. McNamara, supra,

135 Conn. at 496, the injunctions requested here are in further-

ance of, and not contrary to, the orders of the Probate Court (a

point perhaps buttressed by that court’s consent to the original

filing of this suit). In any case, plaintiff has alleged fraud as well

as negligence and so may be able to obtain injunctive relief

under either theory.

Acting as a court of general jurisdiction, the Superior Court

may also order an accounting, and it may do so even though

identical relief is available in Probate Court. Dettenborn v.

Hartford-National Bank and Trust Co., supra, 121 Conn. at

391-2. Matthies v. Seymour Manufacturing Co., supra, 23

F.R.D. at 82.

The Connecticut Supreme Court has said that primary juris-

diction to remove an administrator who neglects to perform his

duties lies in the Probate Court, Williard v. McKone, 155 Conn.

413, 415 (1967), a proposition recently recognized in this Dis-

trict, Davis v. Hunter, 323 F.Supp. 976, 980 (D. Conn. 1970).

It may be that, even in cases of impending irreparable injury

(such as from the wasting of an estate), the Superior Court is

powerless to remove the administrator, but may only enjoin his

activities pending removal by the Probate Court. See Butler v.

Sisson, 49 Conn. 580, 589-90 (1882). On the other hand, a com-

plaint seeking, inter alia, removal of trustees has withstood a

motion to dismiss, thereby implying jurisdiction in the Superior

Court to grant such relief. Matthies v. Seymour Manufacturing

Co., supra; see also McDonald v. Hartford Trust Co., 104

Conn. 169, 190 (1926) (Superior Court has concurrent jurisdic-

tion to appoint trustees).

According to Connecticut law, then, damages, injunctive

relief, and an accounting are all available in Superior Court.

According to the rule announced in Lamberg they are thereby

available in this Court as well. Whether the power to remove an

38a

administrator exists in either court is irrelevant to a motion to

remand from one to the other; this power is either in both

courts or neither one. A remand for lack of such power would

be futile. If it should subsequently be determined that this

power is lacking, the only appropriate remedy would be dismis-

sal of this particular claim.

Yet the Lamberg rule may not be as broad as it seems, for

Lamberg itself recalled the Supreme Court’s warning that fed-

eral jurisdiction must “leave undisturbed the orderly adminis-

tration of the decedent’s estate in the state probate court...

Markham v. Allen, supra, 326 U.S. at 495; Lamberg v. Calla-

han, supra, 455 F.2d at 1216. As to almost all the relief plaintiff

requests, this rule of non-interference is not violated. Neither

damages nor an accounting have been considered to so interfere,

Matthies v. Seymour Manufacturing Co., supra. And as has

been noted, the injunctive relief requested here would enforce

Probate Court orders, not thwart them.

The test of non-interference, however, may not be satisfied

by the claim for removal of the administrator. Since he was

appointed by the Probate Court, Pavia’s removal might repre-

sent an interference with that court’s jurisdiction, and for that

reason may be beyond the authority of a Federal court, even if

it were within the Superior Court’s jurisdiction.

The possibility that this Court may not have jurisdiction to

remove the administrator does not require a partial remand of

this one claim for relief. In the first place, such power may exist

in this Court. Cf. Matthies v. Seymour Manufacturing Co.,

supra. Moreover, after further development of this suit Pavia’s

removal may become unnecessary even if the allegations against

him are proved. As far as the Probate Court is concerned, the

estate is finally settled. Should plaintiff receive the other relief

he requests, it is hard to see at this point what more defendant

Pavia’s removal would accomplish. Finally, to remand this one

claim to Superior Court (assuming for the moment the claim

could be considered by that court but not by this one) would be

more a waste of judicial resources than a proper respect for con-

siderations of comity.

39a

Defendant Harcourt d/b/a Pavia & Harcourt has moved to

dismiss for lack of jurisdiction over his person. Plaintiff claims

jurisdiction pursuant to Connecticut’s long-arm statute, §

52-59b. That statute grants jurisdiction over a non-resident

individual who, inter alia,

(2) (1) transacts any business within the state,

(2) commits a tortious act within the state..., or

(3) commits a tortious act without the state causing

injury to person or property within the state,...if he

(A) regularly does or solicits business...in the

state, or

(B) expects or should reasonably expect the act

to have consequences in the state and derives

substantial revenue from interstate or interna-

tional commerce.

Defendant Harcourt claims to fall in none of these categories,

and has submitted affidavits to that effect.

The defendant claims that his law firm does no business in

Connecticut and has committed no acts, tortious or otherwise

(with two minor and unrelated exceptions) in this state. In addi-

tion, he denies that the firm has committed tortious acts outside

Connecticut, that it expected Connecticut consequences of any

acts it did commit, and that it derives substantial revenue from

interstate or foreign commerce.

Such denials are insufficient for the purposes of this motion.

Defendant’s affidavits leave numerous material issues of fact

unresolved. Plaintiff alleges that Pavia & Harcourt committed

tortious acts within and without Connecticut, among them fil-

ing, Or causing to be filed in the Bridgeport Probate Court

papers which were themselves the product of fraud or negli-

gence, and intentionally or negligently filing papers in the

wrong court, thereby incurring needless delay and expense.

Such allegations, if developed by discovery and proven at trial,

40a

could satisfy the jurisdictional requirement of § 52-59b(a) (2)

and perhaps § 52-59b(a) (1) as well. Defendant cannot foreclose

a finding of jurisdiction under any of these subsections by sim-

ply asserting that the firm did not commit the acts alleged.

United States v. Montreal Trust Co., 358 F.2d 239, 242-3 (2d

Cir. 1966), cert. denied, 384 U.S. 919.

Even if plaintiff can prove that tortious acts were committed

only outside the state, he may yet gain jurisdiction under §

52-59b(a) (3). When defendant admits that the firm maintains

an Office in Italy, he cannot claim as a matter of law at this

point in the proceedings that he does not derive substantial

income from international commerce. Nor in fact does he deny

substantial earnings from interstate commerce, not an unlikely

prospect for a firm such as his. These facts, too, must be

developed through discovery and trial.

Plaintiff claims that Pavia & Harcourt took an active part in

the commission of negligent and/or fraudulent acts in Connec-

ticut. Whether its particular part was played out in New York or

in Connecticut, the firm’s responsibility for these acts, if

proven, would be directly causal and not merely contributory,

cf. Byram River v. Village of Port Chester, New York, Civil

No. B-917 (D. Conn. Aug. 20, 1974), and would represent suffi-

cient contacts with Connecticut for due process purposes. Jnter-

national Shoe Co. v. Washington, 326 U.S. 310 (1945). Since

plaintiff alleges facts sufficient to bring defendant Harcourt

within the terms of the long-arm statute, and since defendant

has failed by his motion and affidavits to place the absence of

these jurisdictional facts beyond question, the motion to

dismiss must be denied.

4la

Accordingly, plaintiff’s motion for remand to the Superior

Court and defendant’s motion for dismissal as to Edgar Har-

court d/b/a Pavia & Harcourt are both denied.

Dated at New Haven, Connecticut, this 30 day of September,

1974.

/s/ Jon O. Newman

Jon O. Newman

United States District Judge

42a

APPENDIX D

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitution of the United States, Amendment XIV, §1:

‘*...nor shall any state deprive any person of life,

liberty, or property without due process of law....’’

28 U.S.C. §1450.

Whenever any action is removed from a State court to a dis-

trict court of the United States.../a/ll injunctions, orders, and

other proceedings had in such action prior to its removal shall

remain in full force and effect until dissolved or modified by the

district court.

Connecticut General Statutes, §52-473

Injunctions may be granted forthwith, if the circumstances of

the case demand it, or the court or judge may cause immediate

notice of the application to be given to the adverse party, that

he may show cause why such injunction should not be granted;

but no temporary injunction shall be granted without notice to

the adverse party unless it clearly appears from the specific facts

shown by affidavit or by verified complaint that irreparable loss

or damage will result to the plaintiff before the matter can be

heard on notice. It shall be sufficient, on such application for a

temporary injunction, to present to the court or judge the

original complaint containing the demand for an injunction,

duly verified, without further complaint, application or motion

in writing.

Connecticut General Statutes, §52-475

Whenever a temporary injunction is granted in any cause

before the return day thereof, it may be dissolved or modified

by the court or judge who issued it, or by any judge of the

superior court; provided a written motion for such dissolution

shall be preferred before the return day. After the return day,

43a

such motion shall be addressed to the court in which the action

is pending, or, if such court is not actually in session, to a judge

thereof; but, in case of the inability of such court or judge,

from any cause, to hear such motion, it shall be heard and deter-

mined by the superior court or by any judge of the superior

court.

RE