Preview:

****************************************************** The ``officially released'' date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ``officially released'' date appearing in the opinion. In no event will any such motions be accepted before the ``officially released'' date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** MARY KUBISH ET AL. v. BUZZIENA ZEGA ET AL. (AC 19697)
Lavery, C. J., and Spear and Hennessy, Js. Argued September 20, 2000--officially released February 6, 2001 Counsel

Charles F. Brower, with whom, on the brief, was Marcus G. Organschi, for the appellants-appellees (plaintiffs). Anthony F. DiPentima, for the appellees-appellants (defendants).
Opinion

LAVERY, C. J. The plaintiffs, Mary Kubish and Stephen Kubish, appeal from the judgment of the trial court ordering a partition of three parcels of real property among the plaintiffs and the defendants, Buzziena Zega, Helen Kubish and Josephine Kubish,1 all of whom previously owned the property as tenants in common. The defendants cross appeal from that part of the judgment ordering them to pay $2500 to the plaintiffs to equalize the differing values of the properties distributed. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our review of the judgment on appeal. The plaintiffs brought this action for a partition in kind of three parcels of real property in Goshen. All five parties owned the parcels as tenants in common. The tenancy in common came about as follows. Martin Kubish, Sr., the father of the parties, originally acquired the first parcel (parcel A), the Home Farm, through several purchases beginning in 1920. He died intestate on July 2, 1962, whereupon his interest in parcel A passed to his widow, Veronika, and to her eight children.2 Veronika Kubish died intestate in March, 1966, and her interest in parcel A passed to her eight children. Since Veronika Kubish's death, the defendants Helen Kubish and Josephine Kubish have had exclusive use and occupancy of parcel A, and, with the help of the defendant Zega, have paid all taxes and other expenses related to the property. Prior to this action, each party had a one-fifth interest in parcel A. Parcel A has a current value of approximately $400,000. The plaintiff Stephen Kubish and his brother, John, purchased the second parcel (parcel B), the StephenJohn Farm, on March 2, 1965, for $45,000. John contributed $8000 to the purchase price, and the plaintiffs contributed the remaining $37,000. When John died in 1990, intestate and unmarried, his 50 percent interest in parcel B passed in equal shares to the parties to this action and to two other brothers, Frank and Martin, Jr. The plaintiffs submitted a claim against John's estate to recover expenses they paid for improvements, repairs, taxes and insurance that related to John's share of ownership of parcel B. The fiduciary of John's estate disallowed that claim. Although the plaintiffs did not appeal from that disallowance, they claim that those payments entitle them to a disproportionate share of the property. After John's death, plaintiff Stephen Kubish had an eight-fourteenths interest3 in parcel B, and his six siblings each had a one-fourteenth4 interest in parcel B. When Frank Kubish died in 1993, intestate and unmarried, his one-fourteenth interest in parcel B passed equally to his six surviving siblings--the five parties to this action and Martin, Jr. The plaintiffs filed no claim against Frank's estate. After Frank's death, the plaintiff Stephen Kubish had a seven-twelfths interest5 in parcel B, and his five siblings each had a one-twelfth interest6 in parcel B. When Martin Kubish, Jr., died in 1994, intestate and unmarried, his one-twelfth interest in parcel B passed equally to the parties in this action. After Martin's death, the plaintiff Stephen Kubish had a three-fifths interest7 in parcel B, and his four surviving siblings each had a 8 in parcel B. That was the state of

the ownership of parcel B prior to the commencement of this action. Parcel B has a value of approximately $600,000. The third parcel (parcel C), the Upton Morse piece, is a landlocked piece of property. The plaintiffs and their brother, Frank Kubish, purchased parcel C as tenants in common in February, 1989. Each party acquired a one-third interest in the parcel. Upon Frank's death in 1993, intestate and unmarried, his one-third interest passed to his six surviving siblings. As a result of that event, each plaintiff had a seven-eighteenths interest9, and the remaining four siblings each had a one-eighteenth interest10 in parcel C. Upon the death of Martin Kubish, Jr., intestate and unmarried, in 1994, his one-eighteenth interest passed in equal parts to the five parties to this action. As a result, each plaintiff had a two-fifths interest,11 and each defendant had a one-fifteenth interest12 in parcel C. Parcel C has a value of $10,000. The plaintiffs thereupon brought this action seeking a partition in kind, alleging that, because they paid a disproportionate share of the cost of improvements to parcel B, they have an equitable claim in excess of their combined legal interest of seven tenths. In their cross complaint, the defendants allege that because they paid for a disproportionate share of the investments and improvements expended on parcel A, they have an equitable claim in excess of their combined legal interest of three fifths. The defendants also filed a motion to appoint a committee pursuant to Practice Book

Download Kubish V. Zega.pdf

Connecticut Law