Opinion
No. CV07-4022288 S
March 18, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS
FACTS
The named appellant-plaintiff, Ruth Gladstein, and appellee-defendant, Sarann Goldfield, are the daughters of the testator, Frances Klavir. Klavir died January 14, 2006 leaving a Last Will and Testament and the appellee-defendant serves as executrix of the Klavir estate. The appellant-plaintiff contested the will and was granted a probate hearing. At the hearing, held on June 4, 2007, the Probate Court issued, in the presence of both the appellant-plaintiff and appellee-defendant, an oral decree admitting the Klavir will to probate. The Probate Court then, also on June 4, issued a written recording of the oral decision. Next, the appellant-plaintiff timely made, on or about June 13, a motion for appeal. However, based on the evidence presently offered to the court, it does not appear that the Probate Court ever ruled on the motion. On July 2, 2007, the appellant-plaintiff filed a motion for extension of time, arguing that the extension was necessary for the appellant-plaintiff to timely file her formal appeal in Superior Court. As with the June motion for appeal, the evidence before this court indicates that this motion was not acted upon by the Probate Court. On July 30, 2007, the Probate Court, without any notice to parties and without a hearing, issued a written decree that, like its decision in June, also admitted the Klavir will to probate. On August 22, 2007 the appellant-plaintiff again moved for an appeal. This time, on August 27, 2007, the Probate Court approved the August 22 motion — even though the appellee-defendant did not file a memorandum opposing the motion until August 29, 2007. The appeal from probate was filed by the plaintiff in Superior Court on September 12, 2007.
DISCUSSION
"If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Windels v. Environmental Protection Commission, 284 Conn. 268, CT Page 4425 287, 933 A.2d 256 (2007). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "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." (Internal quotation marks omitted.) Gerlt v. South Windsor, 284 Conn. 178, 188, 931 A.2d 907 (2007).
The appellee-defendant asserts, as grounds for her motion to dismiss, that the Superior Court lacks the subject matter jurisdiction to hear the present probate appeal. In subsequent memoranda of law in support of her motion, the appellee-defendant argues, primarily, that appellant-plaintiff's appeal from probate is void. To make this point, the appellee-defendant alleges several faults with the appellant-plaintiff's two motions for appeal from probate, as well as the July decree of the Probate Court admitting the Klavir will to probate. The appellee-defendant alleges: First, that the August motion for appeal was untimely as it was made after the expiration of the thirty-day period that followed the June decree admitting the Klavir will to probate; Second, that the July decree was extra jurisdictional and subject to estoppel, thus making it an invalid basis for the appellant-plaintiff's August motion for appeal; Third, because of the invalidity of the July decree and orders, neither could cause the appellant-plaintiff to be aggrieved; Fourth, that there was insufficiency of service in accordance with Practice Book § 10-31(a)(5); Fifth, that there was an improper execution of the surety for the recognizance; Sixth, that the appellant-plaintiff named the improper defendant when she brought suit against the appellee-defendant in her personal capacity and not as the necessary party (i.e. as the executrix of the Klavir estate); Lastly, the appellee-defendant states that the service of process required by the order of the Probate Court permitting this appeal was not met.
The General Statutes lay the foundation for how an appeal from probate is to be made. Section 45(a)-186, in relevant part, states: "Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the [Superior Court] in accordance with subsection (b) of this section. Except in the case of an appeal by the state, such person shall give security for costs in the amount of one hundred fifty dollars, which may be paid to the clerk, or a recognizance with surety annexed to the appeal and taken before the clerk or a commissioner of the Superior Court or a bond substantially in accordance with the bond provided for appeals to the Supreme Court." Additionally, when a motion for appeal from the Probate Court is made, if the motion comports with proper probate procedures then the role of Probate Court is merely ministerial and it must grant the motion for appeal. But, if the motion is imperfect, the Probate Court has discretion as to whether to permit the appeal pending the perfection of the motion. Molleur v. Perkins, 82 Conn.App. 468, 471, 844 A.2d 916, cert. denied, 270 Conn. 912, 853 A.2d 527 (2004). See also Fuller v. Marvin, 107 Conn. 354, 356, 140 A. 731 (1928); Williams v. Cleaveland, 76 Conn. 426, 430, 56 A. 850 (1904); VanBuskirk v. Knierem, 169 Conn. 382, 326 A.2d 1334 (1975); Connecticut Probate Practice Book 1-43. If, however, the Probate Court does not grant the motion for appeal — either by neglecting it or refusing to grant it — then mandamus will lie to compel the Probate Court to permit the appeal to go forward. 1 W. Locke P. Kohn, Connecticut Probate Practice (1951) § 192, p. 393-94. "The writ of mandamus is designed to enforce a plain positive duty, upon the relation of one who has a clear legal right to have it performed, and where there is no other adequate legal remedy." (Internal quotation marks omitted.) Grasso v. Zoning Board of Appeals, 69 Conn.App. 230, 249, 794 A.2d 1016 (2002) (Following the Supreme Court's decision in Milford Education Assn. v. Board of Education, 167 Conn. 513, 518, 356 A.2d 109 (1975)). However, the mandamus will only lie when "all requirements for appeal were met." VanBuskirk v. Knierim, supra, 169 Conn. 388.
The court's analysis begins with whether the July decree was properly issued by the Probate Court, thus bringing the motion for appeal within the thirty day period during which plaintiff could properly file that motion.
Whether the July 2007 Decree of the Probate Court is a Proper Basis for an Appeal
The original decision of the Probate Court, made orally and subsequently recorded in writing on June 4, admitted the Klavir will to probate. The July decree was a written decree issued by the Probate Court again ordering the admission of the Klavir will to probate. It is accepted practice that a Probate Court can act to reissue orders when necessary to correct errors so that a decree or order accurately reflects the court's judgment. See Lillico v. Perakos, 152 Conn. 526, 209 A.2d 92 (1965); Silverstein v. Estate of Silverstein, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 04 0083699 (February 24, 2005, Scholl, J.); 1 W. Locke P. Kohn, supra, § 120, p. 240-42. The Probate Court derives these powers from General Statutes § 45a-128(b). The statute says, in relevant part, that "any order or decree . . . made by a court of probate may, in the discretion of the court, be reconsidered and modified or revoked by the court, on the courts own motion or on the written application of any interested person. Such application shall be made or filed within one hundred twenty days after the date of such order or decree and before any appeal is allowed or after withdrawal of all appeals. The court may reconsider and modify or revoke any such order or decree for any of the following reasons: (1) For any reason, if all parties in interest consent to reconsideration, modification or revocation, or (2) for failure to provide legal notice to a party entitled to notice under law, or (3) to correct a scrivener's or clerical error, or (4) upon discovery or identification of parties in interest unknown to the court at the time of the order or decree." There is no evidence, provided by either party to the present matter, that all parties consented to have the Probate Court, via the July decree, reconsider, modify, or revoke the June decision to admit the will. Also, there is no evidence portraying the Probate Court's original June decision as having been rendered without full notice to all parties. Additionally, there is no evidence that the July decree was intended to correct a scrivener's or clerical error, nor that there were interested parties discovered after the June decree. As none of these four points have been satisfied, it appears that the Probate Court issued the July decree without a proper basis for modifying, revoking, or correcting the June decree.
The appellee-defendant argues that the appellant-plaintiff cannot be aggrieved by such an extrajurisdictional decision. A party is considered to be aggrieved when "there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 400, 920 A.2d 1000 (2007). If the Probate Court was without jurisdiction to make the July decree, then it would follow that it is not a valid decree and, therefore, could not aggrieve the appellant-plaintiff. That no aggrievement could stem from an extrajurisdictional decree of a Probate Court can be traced at least as far back as the Supreme Court's decision in Adam's Appeal, 38 Conn. 304 (1871) (Holding that because the Probate Court's decision was void or extrajurisdictional, there was no grounds for appeal.). Therefore the July decree was, as the appellee-defendant argued, extrajurisdictional and is not the correct decision of the Probate Court from which the appellant-plaintiff may seek an appeal to the Superior Court.
In their seminal treatise on Connecticut Probate Practice, in which they cite the Adam's Appeal decision, Locke and Kohn also pointed out that an appeal may be permitted from a void or extrajurisdictional act "where the appeal is on the ground of lack of jurisdiction to enter the decree appealed from, that the appellant, if interested in the estate, is aggrieved to the extent that the decree has created an apparent adjudication against him and thus cast a cloud upon his title or placed him in a state of uncertainty as to how to proceed to protect his rights. It has, therefore, been held that an appeal does lie from a probate decree on the ground that it is extrajurisdictional and void." 1 W. Locke P. Kohn, Connecticut Probate Practice (1951) § 194, p. 394-96. However, this exception would not apply in the present matter as the appeal here seeks to validate an extrajurisdictional act, not challenge it.
As a result, the appellant-plaintiff can, potentially, only claim aggrievement from the June decree — a claim that the appellee-defendant does not, in her pleadings, dispute. The next question to consider is whether the appellant-plaintiff, if aggrieved by the June decision of the Probate Court, is entitled to have one of her two motions for appeal granted.
It appears that based solely on the plaintiff's position as an heir at law she may claim aggrieved status. Courts in this state have long upheld the analysis of the Supreme Court in Ciglar v. Finkelstone, 142 Conn. 432, 435, 114 A.2d 925 (1955), which asserted that "in an appeal from the admission of a will to probate an allegation in the motion for appeal that the appellant is an heir at law is adequate to satisfy the requirement . . . that the interest of the appellant which has been adversely affected be set forth." See Molleur v. Perkins, supra, 82 Conn.App. 468.
Whether Plaintiff is Entitled to an Appeal
It is appropriate to start with a consideration of the appellant-plaintiff's two motions for appeal and whether either may be considered to enable her to bring a probate appeal before this court. Because the Probate Court acted improperly in issuing its July decree, it is appropriate to scrutinize not only the August decision by the Probate Court to permit an appeal, but also to look carefully at the discrete motions for appeal made by the appellant-plaintiff. In doing so, it is noted that the plain language of the August motion for appeal states that it is an appeal from the July decree and, in stating that point very clearly on the face of the motion, makes no mention of the Probate Court's June decision. The July decree has been rendered invalid as an extrajurisdictional act, and thus cannot provide any grounds upon which the plaintiff could claim to be aggrieved. The consequence is that the appellant-plaintiff's August motion for appeal is rendered invalid as to both the extrajurisdictional July decree of the Probate Court, as well as its June decree.
The appellant-plaintiff seeks to characterize the Probate Court's July decree and the appellant-plaintiff's August motion for appeal as an amendment to the June motion for appeal. Appellant-plaintiff finds statutory authority for this argument under General Statutes § 45a-189, which states: "In the event of any defect in the form of an appeal taken under the provisions of section 45a-186 by any aggrieved person, such person may obtain from the Court of Probate an amendment to the appeal correcting the defect, provided the order for amendment is granted not later than ninety days after the date of the order, denial or decree of the court of probate from which the appeal was originally taken." This line of reasoning cannot withstand scrutiny. In the record before the court there is no evidence that the appellant-plaintiff sought an amendment to her original motion for appeal, and at no time did the Probate Court grant permission to amend the appeal. The appellant-plaintiff did file a motion in July titled "Motion for Extension of Time within which to File Appeal from Probate," but this particular motion cannot and should not be confused with requesting permission of the court to amend an imperfect motion.
The motion for an extension of time was not for amending the prior motion for appeal, but rather driven by concern by the appellant-plaintiff that her appeal would not be filed in Superior Court within a thirty-day period following the June admission of the will. It appears, however, that such a concern is unfounded as the appellant-plaintiff had filed the June motion for appeal within thirty days of the Probate Court's June admission of the will. So long as the motion was filed in the court of probate within thirty days, the plaintiff had satisfied her requirement under the statute of limitations. The Probate Court could then have granted the June motion for appeal outside of the thirty-day window — except, in this case, rather than grant an unnecessary extension, the Probate Court first issued its extrajurisdictional July decree and then granted permission for an appeal specifically from that improper July decree. See Molleur v. Perkins, supra, 82 Conn.App. 468.
The only appeal that can be had in this matter would stem from the appellant-plaintiff's June motion for appeal. That appeal, however, is not the appeal before this court. Though it would appear that the June motion should have been granted as a matter of right by the Probate Court, the present case presents this court with no opportunity to assert jurisdiction over that motion. The appeal here is based solely on the July decree of the Probate Court, and that decree was extrajurisdictional and void. This court is bound to grant the appellee-defendant's motion to dismiss.
For the Superior Court to have had jurisdiction over the June 2007 appeal, the appellant-plaintiff, in light of the Probate Court's apparent inaction on that motion, would have needed to compel, via mandamus, that court to grant that specific motion for appeal. It is not for the court, in this action, to render a binding decision as to whether mandamus will lie should the appellant-plaintiff seek such action. This court merely notes that, in its evaluation of the factual allegations, legal arguments, and evidence presented by both parties on this specific issue, that not only is it possible that the Probate Court may now grant a motion for appeal after the expiration of the thirty-day time period, but mandamus may still lie if the Probate Court acted improperly by failing to grant a timely filed and perfected motion for appeal. See VanBuskirk v. Knierem, supra, 169 Conn. 387; Williams v. Cleaveland, supra, 76 Conn. 430. The Court of Appeals has stated that "an aggrieved party who files a proper motion for appeal within the statutory time should not be deprived of his or her right of appeal merely because the probate judge does not perform his or her required duty promptly. Whether the Probate Court was guilty of negligence, or inadvertence or of mistake in failing to do its legal duty should not deprive the innocent plaintiffs of their right to take an appeal. If the law was otherwise, a probate judge could wrongly and arbitrarily hold up the allowance of an appeal until after thirty days and thereby deprive an aggrieved person of his right to appeal . . . A party's right of appeal may not be nullified by the power of the Probate Court by its mistake, omission or its failure to act properly or expeditiously." (Citations omitted; internal quotation marks omitted.) Molleur v. Perkins, supra, 82 Conn.App. 471. Despite the appellee-plaintiff's allegations that the June motion was imperfect, it appears that the appellant-plaintiff, in addition to filing a timely motion for appeal in June 2007, filed that motion in perfected form. The motion included a recognizance that appeared to comport fully and properly with Form 1004.7, "Motion for Appeal From Probate." J. Kaye W. Effron, 3A Connecticut Practice Series: Civil Practice Forms (2004) Form 1004.7, p. 171, as well as an attached surety that was consistent with rule 2.9 of Connecticut Probate Practice (the appellant-plaintiff is not a fiduciary and, thus, the restriction against attorneys, their spouses or employees acting as surety is not applicable, and the appellee-defendant never provided any evidence that the person used as surety presented a conflict of interest that would have "[impaired] the fulfillment of his or her obligation as surety." Rules of Connecticut Probate Practice 2.9).