Opinion
No. CV 08 4018808
April 15, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS. #102
Before the court is the defendant's motion to dismiss the plaintiff's probate appeal from an order and decree entered by the Court of Probate, District of Berlin. The defendant claims that there is no personal jurisdiction as she was not properly or timely served and the entire process of service was defective, that the court lacks subject matter jurisdiction, and that General Statutes § 45a-186 violates the separation of powers provisions of the Connecticut Constitution.
I PROCEDURAL HISTORY
The decedent, William Grogan, was a resident of New Britain, Connecticut, at the time of his death. An order and decree were entered on September 2, 2008, by the Court of Probate, District of Berlin, accepting the April 18, 2007, amended inventory filed by Barbara Grogan-Barone, the executrix of the estate of William Grogan as well as the July 23, 2007, final accounting of the executrix. On October 1, 2008, an appeal was taken from the Probate Court's order by the filing of a complaint in this court. On October 6, 2008, a copy of the complaint was served upon the Court of Probate, District of Berlin, by a state marshal and on the same date, a copy of the complaint was mailed to the executrix by certified mail, return receipt requested, to her address in Fairfax, Virginia. On October 30, 2008, the envelope mailed certified, return receipt requested, was returned "unclaimed" to the state marshal. On November 20, 2008, the probate judge was served with a copy of the complaint as agent for service for the non-resident fiduciary, the executrix, Barbara Grogan-Barone.
Service was made in hand, accepted by the Clerk of the Probate Court, Cecelia Hamm.
II DISCUSSION
"A motion to dismiss . . .properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . .A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). As such, the plaintiff must "clearly . . . allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004). In order to facilitate this, "[t]he motion to dismiss . . .admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. Where, however . . .the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue . . ." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
A. Personal Jurisdiction
General Statutes § 45a-186 is the relevant statute pertaining to appeals from probate court. It provides that "[a]ny person aggrieved by an order, denial or decree of a court of probate in any matter . . .may . . .not later than thirty days after mailing of an order, denial or decree for any other matter in a court of probate, appeal therefrom to the Superior Court. Such an appeal shall be commenced by filing a complaint in the Superior Court in the judicial district in which such court of probate is located . . .The complaint shall state the reasons for the appeal. A copy of the order, denial, or decree appealed from shall be attached to the complaint." General Statutes § 45a-186(a). After filing the appeal in the Superior Court, a copy of the complaint is served "on the court of probate that rendered the order, denial or decree appealed from and on each interested party. The failure of any person to make such service shall not deprive the Superior Court of jurisdiction over the appeal. Notwithstanding the provisions of Section 52-50, service of the copy of the complaint shall be by state marshal, constable or an indifferent person. Service shall be in hand or by leaving a copy at the court of probate that rendered the order being appealed, or by leaving a copy at the place of residence of the interested party being service or at the address for the interested party on file with said court of probate . . ." (Emphasis added.) § 45a-186(b).
"[J]urisdiction over a probate appeal attaches when the appeal properly is taken and allowed and . . . the requirements of mesne process do not apply to probate appeals." Heussner v. Hayes, 289 Conn. 795, 802, 961 A.2d 365 (2008). In so holding, the Supreme Court expressly overruled Kucej v. Kucej, 34 Conn.App. 579, 62 A.2d 81 (1994), and Bergin v. Bergin, 3 Conn.App. 566, 490 A.2d 543 (1985). Id., 807. In both cases, the Appellate Court had affirmed the Superior Court's dismissal of appeals from probate when the appellants had not satisfied the requirements of mesne process in accordance with relevant statutes. "Jurisdiction attached when the appeals properly were taken and allowed, and the failure of the plaintiff to return process as specified by mesne process requirements pursuant to §§ 52-46a and 52-48 [does] not divest the Superior Court of jurisdiction." Id., 808.
Heussner dealt with the probate appeals statutory scheme prior to the revision effective October 1, 2007, which provided that once the Probate Court allowed the appeal, it then issued orders of notice as it deemed reasonable, pursuant to § 45a-192, which statute has been repealed. Heussner does not appear to be affected by the revision to § 45a-186(a). Id. n. 2, n. 10.
General Statutes § 45a-186 provides that a probate appeal is commenced by filing a complaint in the Superior Court, serving a copy of the complaint on the court of probate that rendered the decision, and "on each interested party." If the court finds that service has not been made on an interested party, the court, "on motion, shall make such orders of notice of the appeal as are reasonably calculated to notify any necessary party not yet served." § 45-186(d). In the present case, the plaintiff served the executrix of the estate as an interested party by certified mail, at the address registered with the probate court. When the notice was returned unclaimed, the plaintiff then effectuated service on her by serving the judge of the probate court as agent for service for a non-resident fiduciary. In any event, regardless of whether or not the executrix has been served at this stage, the court is not deprived of jurisdiction over the appeal since the complaint was served upon the "court of probate that rendered the order." General Statutes § 45-186(b).
B. Subject Matter Jurisdiction
The defendant argues that the court lacks jurisdiction over the subject matter in light of the prayers for relief in the complaint, which specifically seeks a series of corrections dealing with, inter alia, the final account and inventory. She argues that since the settlement of estates are powers vested exclusively in Probate Courts, the Superior Court lacks the jurisdiction to hear this appeal.
Specifically, the plaintiff is seeking the court to order the executrix:
a. to correct and amend the inventory to include certain additional assets;
b. to correct and amend the inventory to include assets set forth in the corrected final account which were not include in the filed inventory;
c. to correct the final account to show the increase in real estate value, the increase in value of personal property and jewelry;
d. to correct the final account to eliminate all expenses for the care of the decedent, William Grogan, as well as IRS taxes, attorneys fees and CPA fee; and
e. to correct the final account.
The defendant correctly points out that the plaintiff did not file her reasons for appeal within ten days of the return day as required by Practice Book § 10-76. This Practice Book rule has not been amended since the date of the revision to the statutory scheme which previously had required the appellant to state the reasons for the appeal in the complaint.
"Our legislature has consistently drafted legislation to state expressly when a court has exclusive jurisdiction. See, e.g., General Statutes § 46b-42 (granting Superior Court exclusive jurisdiction over all complaints seeking dissolution of marriage, decree of annulment or legal separation); General Statutes § 46b-212h(a) (granting family support magistrate division or Superior Court exclusive jurisdiction over child support orders); General Statutes § 52-12 (granting Superior Court exclusive jurisdiction over sale of certain real property) . . ."In contrast to courts of probate, [t]he Superior Court of this state as a court of law is a court of general jurisdiction. It has jurisdiction of all matters expressly committed to it and of all others cognizable by any law court of which the exclusive jurisdiction is not given to some other court. The fact that no other court has exclusive jurisdiction in any matter is sufficient to give the Superior Court jurisdiction over that matter." (Citations omitted; internal quotation marks omitted.) In re Joshua S., 260 Conn. 182, 214-15, 796 A.2d 1141 (2002). The Supreme Court has recognized that "there are three types of actions in which the Superior Court does not exercise original jurisdiction: those involving the custody of a child not the issue of the marriage involved in a divorce, settlement of an executor's or administrator's account, and the question of due execution of a will." (Internal quotation marks omitted.) Id., 216.
"The Superior Court shall be the sole court of original jurisdiction for all causes of action, except such actions over which the courts of probate have original jurisdiction, as provided by statute." General Statutes § 51-164s. Probate courts generally have jurisdiction over matters involving the settlement of estates and the validity of wills. General Statutes § 45a-98. "The Superior Court cannot exercise a primary jurisdiction which by the statute is reposed in the Courts of Probate. It can only settle an account only on an appeal from doings of the Court of Probate and then only so far as it can without exercising a power vested exclusively in the Court of Probate." (Emphasis added.) First National Bank Trust Co. v. McCoy, 124 Conn. 111, 115, 198 A. 183 (1938). "It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation . . .Our courts of probate have a limited jurisdiction and can exercise only such powers as are conferred on them by statute . . .They have jurisdiction only when the facts exist on which the legislature has conditioned the exercise of their power." (Citations omitted; internal quotation marks omitted.) Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565, 192 A.2d 44 (1963).
This matter involves an appeal from the Probate Court from an order and decree accepting the inventory and restating the final account. It is undisputed that the Superior Court would not have had jurisdiction to enter any original orders regarding the estate settlement which is within the jurisdiction of the Probate Court. The defendant argues that the relief the plaintiff is seeking is outside the scope of the court's jurisdiction. The plaintiff contends that there is subject matter jurisdiction because in a probate appeal, the discretion of the Probate Court in accepting an inventory or settling a final account is passed on to the Superior Court, which conducts a de novo proceeding. At the de novo hearing, the appellant would be permitted to present "any evidence which could have been offered in the probate court whether or not it was actually offered." Prince v. Sheffield, 158 Conn. 286, 299, 259 A.2d 621 (1969).
Prior to the 2007 revision, probate court appeals in the Superior Court were generally a trial de novo. See, e.g., Palzoie v. Palzoie, 283 Conn. 538, 541 n. 5, 927 A.2d 903 (2007). The current law, however, makes it clear that certain probate hearings should be conducted on the record and that "[a]ppeals from any decision rendered in any case after a recording is made of the proceedings under Section 17a-498, 17a-685, 45a-650, 51-72 or 51-73 shall be on the record and shall not be a trial de novo," General Statutes § 45a-186(a), and would appear to favor hearings on the record in light of the statutory schedule provided in § 45a-186b.
General Statutes § 17a-498 addresses orders of commitment; § 17a-685 addresses involuntary commitment; § 45a-650 addresses involuntary representation and appointment of conservator; §§ 51-72 and 51-73 address the use of a stenographer and the powers and duties of the stenographer as an official court reporter. Section 51-73 also provides: "Appeals from any decision rendered in any case after a record is made under this section and Section 51-72, shall be on such record and shall not be a trial de novo."
The revisions do not include any provisions regarding hearings not held on the record.
General Statutes § 45a-186b, "Appeal from probate court after a hearing on the record," sets forth the standard of review for probate court appeals. It provides: "In an appeal taken under Section 45a-186 from a matter heard on the record in the Court of Probate, the Superior Court shall not substitute its judgment for that of the Court of Probate as to the weight of the evidence on questions of fact. The Superior Court shall affirm the decision of the Court of Probate unless the Superior Court finds that substantial rights of the person appealing have been prejudiced because the findings, inferences, conclusion or decisions are: (1) In violation of the federal or state constitution or the general statutes; (2) in excess of the statutory authority of the Court of Probate, (3) made on unlawful procedure, (4) affected by other error of law, (5) clearly erroneous in view of the reliable, probative and substantial evidence on the whole records, or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
"As § 45a-186b is a newly enacted statute, there is a dearth of case law analyzing the proper scope of judicial review regarding questions of fact in probate appeal. The language of § 45a-186b is virtually identical to the Uniform Administrative Procedure Acts's (UAPA) section governing the standard of review in an administrative appeal. See General Statutes § 4-183(j). `The standard of review as prescribed in [§ 45a-186b] is now more clearly akin to the standard for review of an administrative appeal, in which the Superior Court is not authorized to substitute its judgment for that of the tribunal. Rather the usual standard of review is a deferential one . . .which can generally be described as a determination by the Superior Court of whether in light of the evidence, the [tribunal] acted unreasonably, arbitrarily, illegally or in abuse of its discretion.'" In re Follachio, Superior Court, judicial district of New Britain, Docket No. CV 08 4018829 (October 29, 2009), quoting King's Highway Associates v. Planning Zoning Commission, 114 Conn.App. 509, 514, 969 A.2d 841 (2009).
General Statutes § 45a-186(a) provides in relevant part that "[a]ppeals from any decision [of the Probate Court] rendered in any case after a record is made under Section 17a-498, 17a-685, 45a-650, 51-72 or 51-73 shall not be a trial de novo." The file in this case as it now appears does not disclose whether there is a record of the probate court proceedings. In the event there is no record, this court would be required to conduct a trial de novo review of the probate court's decision because the court would need to make factual findings. Further, established law is that "[a]n appeal from probate is not so much an `appeal' as a trial de novo with the Superior Court sitting as a probate court and restricted by a probate court's jurisdictional limitation." Gardner v. Balboni, 218 Conn. 220, 225, 588 A.2d 634 (1991). If, however, the appeal is from a proceeding on the record, § 45a-186b expressly authorizes the court, if it finds the appellant prejudiced, to "render a judgment that modifies the Court of Probate's order, denial or decree or remand the case to the Court of Probate for further proceedings."
The plaintiff has alleged facts sufficient to support her claims for relief. Whether the court will conduct a trial de novo, employ the standards for evidence on questions as fact as set forth in General Statute § 45a-186b, or a combination of the two, is an issue the court does not need to address at this time. Although the probate court possesses the sole jurisdiction of final accounts pursuant to General Statutes § 45a-175, this court has subject matter jurisdiction over the appeal from the probate court. The allowance or disallowance of a probate accounting can be appealed to the Superior Court. Reiley v. Healey, 122 Conn. 64, 79, 187 A. 661 (1936). "The Superior Court cannot exercise a discretion vested in the Court of Probate; it can only review the exercise of that discretion to determine whether it has been reasonably and legally exercised." Id. "Although the statute generally authorizing appeals from probate . . .contains nothing as to the type or scope of the appeal, it has long been held that the Superior Court on an appeal is not exercising its general jurisdiction but is exercising the powers of the probate court from which the appeal was taken. The probate court is a court of limited jurisdiction and has only such powers as are given it by statute or are reasonably to be implied in order to carry out its statutory powers." Prince v. Sheffield, supra, 158 Conn. 293-94.
C. Separation of Powers
The defendant also moves the court to dismiss the action on the grounds that § 45a-186, as amended, violates the separation of powers provision of the Connecticut Constitution. She argues that the appeal procedure commences with the filing of a "complaint," as directed by statute, but directs a manner of procedure and commencement of the action which violates existing law requiring service and return of a "civil" action. She contends that the legislature did not have the authority to enact the revised statute because it interferes with the jurisdiction of a constitutional court by setting forth the procedures for the commencement of the probate appeal by filing a complaint in the Superior Court by a different method than the standard mesne process.
As stated previously, our Supreme Court has stated that "the requirements of mesne process do not apply to probate appeals." Heussner v. Hayes, supra, 289 Conn. 802. Although the commencement of an appeal is by filing of a complaint in the Superior Court, the requirements as set forth in General Statutes § 52-45a regarding commencement of civil actions do not apply.
Furthermore, Article Fifth, Sec. 1 of the Connecticut Constitution provides:
The judicial power of the state shall be vested in a supreme court, a superior court, and such lower courts as the general assembly shall, from tune to time, ordain and establish. The powers and jurisdiction of these courts shall be defined by law. (Emphasis added.)
"An appeal from a Probate Court to the Superior Court is not an ordinary civil action . . .When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate . . .In ruling on a probate appeal, the Superior Court exercised the powers, not of a constitutional court of general or common law jurisdiction, but of a Probate Court." Silverstein v. Laschever, 113 Conn.App. 404, 409, 970 A.2d 123 (2009).
General Statutes § 45a-186, as amended, sets forth a procedure for the commencement of probate court appeals. Courts should refrain from declaring statutes unconstitutional when unnecessary. The Supreme Court has always "eschew[ed] unnecessary determinations of constitutional questions." (Internal quotation marks omitted.) Stamford Hospital v. Vega, 236 Conn. 646, 663, 674 A.2d 821 (1996).
For example, the Supreme Court declined to address a trial court's holding that a statute of limitations relevant to the commencement of paternity actions was unconstitutional. In Moore v. McNamara, 201 Conn. 16, 20-21, 513 A.2d 660 (1986), the court held that it "has a basic judicial duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case . . .The best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity . . .Appropriate deference to a coordinate branch of government exercising its essential functions demands that [a court] refrain from deciding constitutional challenges to its enactments until the need to do so is plainly evident." (Citations omitted; internal quotation marks omitted.). Thus, "[i]n the absence of weighty countervailing circumstances, it is improvident for the court to invalidate a statute on its face . . .[C]onstitutional issues do not exist in a vacuum . . .The best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity." (Citations omitted; internal quotation marks omitted.) Bell Atlantic Mobile, Inc. v. Dept. of Public Utility Control, 253 Conn. 453, 490, 753 A.2d 361 (2000).
III CONCLUSION
For all of the foregoing reasons, the court the motion to dismiss is denied.