Opinion
No. CV 08-4036369-S
April 21, 2010
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT DATED FEBRUARY 16, 2010
FACTS AND PROCEDURE:
This case arises from an appeal from Probate of the Probate Court of Hartford in which the parties are in reality The Particular Council Society of St. Vincent DePaul of Hartford, Inc., the plaintiff and the Arch Diocese of Hartford and Archbishop Henry J. Mansell as defendants. The controversy stems from a will of the testatrix, Mary Banning, executed by her in 1939, which for the purposes of this case at this point, established in paragraph 19 a trust to take effect upon the death of various relatives of her which apparently occurred no later than 1956. Article 5th (e)3 provided in the trust that one-fifth thereof should go ". . . to the Roman Catholic Bishop of Hartford for use by him for the work of the St. Vincent DePaul Society." The bishop is presently the Archbishop of the Arch Diocese of Hartford, Archbishop Henry J. Mansell. Through 2004, the one-fifth of the trust was paid over to the plaintiff, but commencing in 2005 the funds therefrom were paid over to the St. Vincent DePaul Mission of Waterbury, Inc. and the St. Vincent DePaul Mission of Bristol, Inc. The funds were initially paid over to the St. Vincent DePaul Society of Bristol and Waterbury, but upon protest by the plaintiff claiming that this was an encroachment on its trade name, the Arch Diocese changed the titles to St. Vincent DePaul Mission. It is alleged that the missions in Waterbury and Bristol were established by the Archbishop, and he became and is President of each mission. The ultimate decision for this Court is to interpret the wording of the will, in particular Article 5th (e)3 as described above. However, the defendants have moved for summary judgment claiming that there is no disputed issue of material fact and that the defendants are entitled to judgment as a matter of law. The parties submitted briefs which the court read over the weekend, and the defendants submitted a reply brief which was not in the file or e-filed but was given to the court at the time of the hearing on short calendar on April 19, 2010 which the court has read.
STANDARD OF REVIEW:
In considering a motion for summary judgment, the court must determine whether the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and, if so, whether the moving party is entitled to judgment as a matter of law. Practice Book § 17-49, "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 289-90, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "A `material' fact has been defined adequately and simply as a fact which will make a difference in the result of the case." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969).
ISSUES AND FINDINGS: 1. Can the Court Entertain a Motion for Summary Judgment in This Case?
The short answer is No.
In Beizer v. Dept. of Labor, 56 Conn.App. 347, 362-3 (2000), the action was brought as an appeal from a state agency pursuant to Section 4-183(j), and the court stated, inter-alia, "Nothing in Section 4-183(j) gives the trial court authority to rule on a motion for summary judgment . . ." The same rule applies to the statute permitting an appeal of a probate decision, namely Conn. Gen. Stat. § 45a-186(a) which reads in pertinent part: . . .
Any person aggrieved by any order, denial or decree of a court of probate in any manner, unless otherwise specially provided by law, may . . . appeal therefrom to the Superior Court.
As in Conn. Gen. Stat. § 4-183(j), there is nothing in the statute authorizing this appeal that gives the trial court authority to rule on a motion for summary judgment.
Further, Section 1-1(a) of the Connecticut Practice Book (hereinafter also "CPB") entitled Scope of Rules provides as follows: "The rules for the Superior Court govern the practice and procedure in the Superior Court in all civil and family actions whether cognizable as cases at law, in equity or otherwise, in all criminal proceedings and in all proceedings on juvenile matters . . ." (Emphasis added). However, the case of Marshall v. Marshall, 71 Conn.App. 565, 569, (2002) which is a probate appeal, states in pertinent part as follows:
Furthermore, with regard to appeals from probate, our case law states that `[a]n appeal from a probate order or decree to the Superior Court is not a civil cause of action . . .'
Accordingly, this Court concludes and finds that a summary judgment motion is not permitted in an appeal from probate.
Defendants point to CPB § 10-76 regarding probate appeals which states, inter-alia, "(a) Unless otherwise ordered, in all appeals from probate, the appellant shall file reasons of appeal, which upon motion shall be made reasonably specific, within ten days after the return day; and pleadings shall thereafter follow in analogy to civil actions." (Emphasis added.) Defendants claim that this wording including analogy permits a motion for summary judgment. However, in reading the English language, the court refers the parties to Webster's Ninth New Collegiate Dictionary which defines analogy as "a resemblance in some particulars between things otherwise unlike: SIMILARITY." Ballentine's Law Dictionary, Third Edition, defines analogous as "Having relation to. Comparable in some respect." These definitions make it clear to this Court that the word "analogy" in CPB § 10-76 is not sufficient to overcome the fact that an appeal from probate is not a civil action.
Defendants claim that the Practice Book should be liberally construed. This may be, but cases described above, even if liberally construed, result in the same conclusion as this Court has made.
In reading the Practice Book, Section 1-1 and reviewing Marshall v. Marshall, supra, one would not reach CPB § 10-76 because § 1-1 and Marshall, supra prohibit a probate appeal being a civil action and the use of summary judgment.
2. Are There Issues of Material Fact Based Upon Which the Motion for Summary Judgment Should be Denied?
The short answer is Yes.
It is an issue of fact as to the intent of Mary Banning. Facts for example, may be produced as to whether she had knowledge at the time of execution of her will in 1939 of the potential for the Waterbury and Bristol missions. Should the court make an inference from the fact that Mary Banning was unaware of the Bristol and Waterbury missions in 1939?
The court at times may have to resort to extrinsic facts as an aid in explaining any language whose meaning the [testatrix] has left uncertain. See Zauner v. Brewer, 220 Conn. 176, 181 (1991).
Is the word "work" used in Article 5th (e)3 sufficiently clear, or does it need expert testimony as to its meaning? Both parties have submitted affidavits from experts. Presumably they would testify at trial as to their interpretations in an aid to the Court. The testimony of these experts would appear to be appropriate to determine some of the meaning, and that could be construed as an issue of fact.
As the defendants claim in the Reply Brief, "Certainly, the name and patronage of St. Vincent DePaul are not owned by the plaintiff and other groups and organizations have assumed and will continue to use them. If anything, the fact that these entities were originally formed as St. Vincent DePaul `Societies' contradicts plaintiff's claim that the name is reserved for use by the Particular Council and supports the view that the name is somewhat generic." This would appear to be a contested issue of fact.
CONCLUSION:
Based upon the foregoing, the court finds that a motion for summary judgment is not permitted in a probate appeal, and that there are potential issues of fact in dispute. As stated in the Standard of Review "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party . . ." Accordingly, the motion for summary judgment is denied.