Stuart v. Freiberg
For claims of fraud, negligent misrepresentation and accounting malpractice, the question of reliance was not amenable to summary judgment because it was fact bound and the facts regarding the issue were in dispute. The plaintiffs, William and Jonathan Stuart, appealed from the summary judgment rendered for the defendant, Richard Freiberg, an accountant hired by their brother, Kenneth Stuart, Jr., then executor of the estate of their father, Kenneth J. Stuart, Sr., and trustee of The Kenneth J. Stuart Living Trust. The majority of the Appellate Court reversed the judgment as to fraud, negligent misrepresentation and accounting malpractice counts and affirmed the judgment as to a count alleging a violation of the Connecticut Unfair Trade Practices Act, C.G.S. §42-110a. For the fraud and misrepresentation counts, the plaintiffs argued that they presented sufficient proof of their delay in seeking the removal of Kenneth Stuart, Jr., as executor and in proceeding with claims against him in Superior Court, because of their reliance on the defendant's misrepresentation. The trial court determined that the plaintiffs could not prove they delayed their removal attempts because they commenced litigation to remove Stuart, Jr. as executor and trustee in 1993, before the defendant was retained. However, the majority concluded from the record that the plaintiffs did not seek Stuart Jr.'s removal in 1993, but an injunction, constructive trust and order setting aside certain conveyances. In Stuart v. Stuart, the trial court found that the defendant provided accounting assistance to Stuart, Jr. during the litigation and that improper acts were committed by Stuart, Jr. with the assistance of the defendant to the detriment of the estate beneficiaries. In sum, resolution of the issue of the plaintiffs' reliance on the defendant's accounting conduct was for the fact finders, not summary disposition by the court short of trial. For the malpractice count, a telephone conversation and mailing from the defendant to estate beneficiaries sufficiently raised a genuine issue as to whether the plaintiffs were the intended beneficiaries of the defendant's services and, therefore, whether the defendant owed the plaintiffs a duty. The plaintiffs sufficiently alleged losses to leave the issue of detrimental reliance to a fact-bound inquiry. Judge DiPentima dissented, in part, disagreeing that a genuine issue of material fact existed as to the plaintiffs' lack of reasonable reliance.