Opinion
No. CV 10-6010460
December 10, 2010
MEMORANDUM OF DECISION MOTION TO DISMISS
The plaintiffs, Bruce Fielding and Paul Fielding, appeal from an order of the Enfield Probate Court that was mailed on March 18, 2010. The plaintiffs filed their complaint, which has a return date of May 4, 2010, in Superior Court on April 29, 2010. On May 3, 2010 Carol Smith entered her appearance as a defendant. On July 29, 2010, Smith moved to dismiss the case on the grounds that the court lacks subject matter jurisdiction over the action and insufficiency of process in that the plaintiffs failed to file their appeal within thirty days of the probate court mailing its order and that the plaintiffs failed to return the process to the Superior Court at least six days before the return date. The issue before the court is whether certain procedural irregularities make an appeal from probate void or voidable. The court heard the matter at short calendar on September 20, 2010.
In her memorandum in support of her motion to dismiss, Smith makes two arguments. One of Smith's arguments is that the plaintiffs did not file their appeal within thirty days of the mailing of the order of the probate court, as required by General Statutes § 45a-186(a). The other is that the plaintiffs did not return process at least six days before the return date, thereby depriving the Superior Court of subject-matter jurisdiction under General Statutes § 52-46a. The plaintiffs counter both arguments by contending that Smith waived any such defects by failing to file a motion to dismiss within thirty days of the date she filed her appearance.
Section 45a-186(a) requires that, except for several specifically enumerated exceptions, appeals from the probate court must be filed "not later than thirty days after a mailing of an order, denial or decree." "The effect of a failure to file an appeal on time is to make the appeal voidable but not void." Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 566, 192 A.2d 44 (1963). "[T]he statute limiting the time for taking appeals from probate is a statute of limitations in the ordinary sense, and was intended primarily and principally to limit the right of the appellant and to protect the rights of the appellee, and not to . . . affect the jurisdiction of the Superior Court over an appeal . . . if not objected to in the proper way and at the proper time." (Internal quotation marks omitted). Id., 566-67; see also Phinney v. Rosgen, 162 Conn. 36, 41, 291 A.2d 218 (1971). "The statute prescribes that an appeal shall be taken within a certain time, but no words are used which necessarily prohibit the court of probate from granting an appeal after the limit has expired." Orcutt's Appeal From Probate, 61 Conn. 378, 384, 24 A. 276 (1891) (interpreting a substantially similar predecessor to § 45a-186). A party's failure to file a probate appeal within thirty days, therefore, does not deprive the Superior Court of subject matter jurisdiction outright. Rather, such a defect must be timely raised in a motion to dismiss, i.e. a motion that is filed within thirty days of the date the movant filed his or her appearance. Because Smith filed her motion to dismiss on July 29, 2010, eighty-seven days after filing her appearance, her motion was untimely.
The fact that the plaintiff served the defendants with process within the thirty-day period does not alter the analysis because the operative date for purposes of § 45a-186(a) is the date of filing the complaint. Gates v. Gates, 51 Conn.Sup. 148, 153, 975 A.2d 147 [ 46 Conn. L. Rptr. 102] (2008), aff'd 115 Conn.App. 293, 971 A.2d 852 (2009), cert. denied, 293 Conn. 924, 980 A.2d 910 (2009).
As to Smith's other argument, § 52-46a provides in relevant part: "Process in civil actions returnable to the [Superior Court] shall be returned to . . . the clerk of such court at least six days before the return day." Smith cites Bergin v. Bergin, 3 Conn.App. 566, 568, 490 A.2d 543, cert denied, 196 Conn. 806, 494 A.2d 903 (1985), for the proposition that § 52-46a applies to probate appeals. Probate appeals, however, are not subject to those requirements. Indeed, in Heussner v. Hayes, 289 Conn. 795, 807, 961 A.2d 365 (2008), the Supreme Court specifically overruled Bergin v. Bergin, stating that, "to the extent that Bergin [held] that probate appeals are subject to the requirements of mesne process, that conclusion is hereby overruled." More generally, the Supreme Court ruled, "[m]esne process requirements governing notice do not apply to probate appeals, and therefore, failure to comply with them cannot deprive the Superior Court of subject matter jurisdiction over the appeal." Id., 808. As to the particular statute at issue, the court added, "[j]urisdiction 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 did not divest the Superior Court of jurisdiction." Id.
Therefore, the plaintiffs' failure to return process at least six days before the return date does not deprive the court of subject matter jurisdiction or make the appeal void.
CONCLUSION
Accordingly, for the foregoing reasons, the motion to dismiss is hereby denied.