Opinion
No. FST CV 09-4015655 S
August 12, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS #s 101, 103
Before the court are the defendants' motions to dismiss the plaintiff's action contesting the granting of a decree by the Stamford Probate Court. The defendants claim that the present action is in the nature of a statutory appeal and that the plaintiff failed to commence the appeal within the time prescribed by Connecticut General Statutes § 45a-186. The plaintiff contends that the action is equitable in nature and has therefore been timely commenced. For the reasons enunciated below, the court finds that it lacks jurisdiction and accordingly grants the defendants' motions to dismiss.
Procedural History
On January 14, 2009, the plaintiff, Iva Marie Atkinson, commenced this action by service of process on the defendants, Julie Nixon, Ann Marie Egan and Susan Pickett. In her one-count complaint, the plaintiff seeks a decree or order vacating admission to probate of Ralph Atkinson's last will and testament, the letters testamentary issued in favor of Julie Nixon and the Bank of America, and the waiver of notice and hearing.
While the complaint names the Bank of America as a defendant, the Bark of America was not named on the summons, nor was process ever served upon it. Nonetheless, the Bank of America filed an appearance on January 29, 2009.
The plaintiff alleges the following facts. The plaintiff is the sister of Ralph H. Atkinson, the decedent who died on October 27, 2007. On February 19, 2008, the Probate Court for the district of Stamford issued a decree approving the last will and testament of Ralph H. Atkinson, dated February 14, 2001. The plaintiff asserts that prior to his death, the decedent repeatedly expressed that he had provided within his last will and testament for the plaintiff and all of his nephews and nieces on an equal basis. The will presented in probate instead left seventy percent of the decedent's estate to Nixon and Pickett, who, according to the plaintiff, prepared the will specifically "to take control of the benefits of the estate and properties of the [d]ecedent for themselves." It is further alleged that at the time of the execution of the 2001 will, the decedent was eighty-five years old and suffering from advanced Alzheimer's disease, two malignant forms of cancer, and other illnesses.
After the will was filed with the Probate Court, all the living blood relatives were requested to sign a consent to the admission of the will. This consent form did not disclose that the decedent had Alzheimer's disease or cancer. The plaintiff, who is eighty-four years old and a domiciliary of Missouri, executed a "Written Waiver of Notice of Hearing . . . without the disclosures of the Decedent's condition . . ." Finally, the plaintiff alleges that Nixon and Pickett acted "negligently and/or fraudulently" in that they did not make "disclosure of the . . . fraudulent or incompetent document to the [p]laintiff . . . [and] clandestinely kept possession of the purported [w]ill to the exclusion of any knowledge, information, advice, or notice" for the purpose of depriving the plaintiff of her rightful share of the decedent's estate.
Defendants, Pickett and Nixon and Bank of America (the defendants) filed separate motions to dismiss the complaint asserting a lack of jurisdiction for the reasons hereinafter discussed.
Legal 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).
The defendants argue that if the complaint is construed as an appeal from the probate proceeding, it should be dismissed pursuant to General Statutes § 45a-186(a) because (1) it was not timely filed, and (2) the plaintiff did not attach a copy of the Probate Court's order. Alternatively, if the complaint seeks equitable relief, they contend that the plaintiff has not established the required "exceptional circumstances" of fraud, accident or mistake, which would enable the court to consider this action an attack on the Probate Court's order or decree.
The defendants additionally argue that the complaint was not timely returned to the court, pursuant to General Statutes § 52-46a, as it was returned only four days prior to the return date, rather than the mandated six days.
The plaintiff counters that the complaint is not an appeal from probate, and, therefore, § 45a-186(a) is not applicable to the present action. Rather, the plaintiff argues that the complaint is "grounded in the general equitable power of the Superior Court" and that exceptional circumstances exist because of the defendants' fraudulent and concealing actions. Thus, the plaintiff argues that the court has the authority to hear her claim. Regardless of the characterization of the complaint, however, in either instance the matter must be dismissed for lack of jurisdiction.
The timeliness of probate appeals is governed by General Statutes § 45a-187, which provides in relevant part: "An appeal under section 45a-186 by persons of the age of majority and who are present or who have legal notice to be present, or who have been given notice of their right to request a hearing or have filed a written waiver of their right to a hearing, shall be taken within thirty days, except as otherwise provided in this section." General Statutes § 45a-188(c) further provides that: "All appeals by persons not inhabitants of this state who were not present at such time and did not have legal notice to be present shall be taken within twelve months thereafter." In Phinney v. Rosgen, 162 Conn. 36, 291 A.2d 218 (1971), our Supreme Court interpreted the interplay between these statutes when an out-of-state plaintiff commences a probate appeal. The Court stated that: "Our legislation has always favored the speedy settlement of estates, and to that end has carefully limited the time within such appeals [from probate] must be taken . . . Sections 45-289 and 45-291 of the General Statutes limit the time for appeal from the Probate Court. They allow aggrieved persons `one month in which to appeal to the Superior Court if they are present or have legal notice to be present . . . or within twelve months if, being adults, they are not present and do not have legal notice.' . . . While § 45-289 and 45-291 speak only in terms of notice and not notice or written waiver, we hold that if a written waiver of notice is filed, the notice requirement of" 45-289 and 45-291 is satisfied . . . The plaintiff has thirty days from the decree [of the Probate Court] in which to file her appeal." (Citations omitted; internal quotation marks omitted.) Id., 39-40.
Since our Supreme Court's opinion in Phinney v. Rosgen, General Statutes §§ 45-289 and 45-291 have been re-codified to their present numbering, §§ 45a-187 and 45a-188.
Consequently, although the plaintiff is a resident of Missouri, Phinney v. Rosgen dictates that if she signed a written waiver, the plaintiff must commence a probate appeal within thirty days of the order of the Probate Court. Pickett has attached a waiver that was signed by the plaintiff on January 29, 2008, as well as the Probate Court's decree entering the will into probate on February 19, 2008. The plaintiff did not commence the present action until January 14, 2009, which was well outside the thirty-day time limit authorized by § 45a-187. Accordingly, any appeal from probate would be time barred.
Having determined that any probate appeal brought by the plaintiff would be untimely, it is unnecessary to examine the defendant's argument that this matter should be dismissed because the plaintiff failed to include a copy of the Probate Court's order as required by General Statutes § 45a-186(a).
"As a general rule, the Probate Court has exclusive subject matter jurisdiction over matters involving validity of wills and settlement of estates." Ferris v. Faford, 93 Conn.App. 679, 691, 890 A.2d 602 (2006). Nevertheless, in instances where the plaintiff alleges that a will was procured by "fraud, accident, mistake and the like," as this complaint alleges, the Superior Court may exercise equitable jurisdiction. See, e.g. Haverin v. Welch, 129 Conn. 309, 316, 27 A.2d 791 (1942).
"[W]here a plaintiff's appeal from probate was untimely, the Supreme Court [has] stated that [the plaintiff's] only recourse on the ground of misrepresentations would be by an appeal to the general equitable power of the Superior Court, which may, in proper cases, grant relief against decrees of the Probate Court procured by fraud, accident, mistake and the like." (Internal quotation marks omitted.) Pignataro v. Cappiello, Superior Court, judicial district of Fairfield, Docket No. CV 319464 (May 16, 1996, Levin, J.). "[T]he Superior Court . . . has subject matter jurisdiction over probate matters when an aggrieved party requests relief in equity, as Probate Courts lack general equity jurisdiction." Daddona v. Kindred Nursing Centers East, L.L.C., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 4011072 (August 14, 2007, Karazin, J.).
The principles of equity are well settled. "Courts of equity may grant relief from the operation of a judgment when to enforce it is against conscience, and where the appellant had no opportunity to make defense, or was prevented from so doing by accident, or the fraud or improper management of the opposite party, and without fault on his [or her] own part . . . Fraud, accident, mistake, and [s]urprise are recognized grounds for equitable interference, when one, without his [or her] own negligence, has lost an opportunity to present a meritorious defense to an action, and the enforcement of the judgment so obtained against him [or her] would be against equity and good conscience, and there is no adequate remedy at law." (Citations omitted.) Cavallo v. Derby Savings Bank, 188 Conn. 281, 284-85, 449 A.2d 986 (1982). "Exceptional circumstances [must] exist . . . in which the court will consider an attack on a probate order or decree in lieu of or subsequent to appeal. For example . . . if it is alleged that the judgment or decree is invalid because of fraud or mistake entering into its procurement." (Internal quotation marks omitted.) Daddona v. Kindred Nursing Centers East, LLC., supra, Superior Court, Docket No. CV 07 4011072.
The court may look beyond the complaint and may review the entire record, including the affidavits submitted by both parties, in order to determine whether exceptional circumstances warrant exercise of equitable relief. According to the affidavits of both parties, the attorney for the executors of the estate, Anthony Bovino, sent a letter to the plaintiff containing the following documents: (1) a copy of the decedent's will, dated February 14, 2001, (2) an explanation of the probate process, (3) a brief summary of the terms of the will, and (4) a general waiver form for the plaintiff to sign, if she determined that she was willing to waive the need for a hearing. It is uncontested that the plaintiff read the documents, and signed and dated the waiver and returned it to Bovino.
The letter states in relevant part: "All persons who would receive the estate if there were no Will . . . receive notice of the hearing, so that they can object to the admission of the document if they believe it is not the valid Will of the decedent . . . However, if . . . you consent to the admission of the Will, the probate court will admit the Will . . . Please contact me if you have any questions regarding this matter." The waiver states that "each of the undersigned represents that he or she has examined the application and related documents and hereby WAIVES NOTICE OF HEARING upon the said application [that the will be admitted to probate and letters testamentary be issued] and has NO OBJECTION to the granting and approval thereof."
The plaintiff alleges that the defendants acted negligently or fraudulently by failing to disclose the decedent's medical conditions. Paragraphs sixteen and seventeen of the complaint allege that "the various blood relatives were requested to sign a consent to the admission of the purported [w]ill, without disclosure that the [d]ecedent had suffered for many years from advance [a]lzheimer's disease [and other illnesses] . . . The [p]laintiff . . . who is infirm at an advanced age of 84 years, executed a [w]ritten [w]aiver of [n]otice of [h]earing on said application for [l]etters [t]estamentary by the [d]efendants, without the disclosures of the [d]ecedent's condition for several years prior to his demise." Specifically, in her memorandum in opposition, she argues that there was never any statement, disclosure, or notification by the defendants of the advanced Alzheimer's condition from which the decedent was suffering at the time he executed the alleged testamentary document. This argument, as clarified by the plaintiff's subsequent pleadings and affidavits, is essentially one of fraud by concealment. She argues that this concealment is an exceptional circumstance sufficient to allow the court to establish subject matter jurisdiction.
"Fraud is not to be presumed, but must be strictly proven. The evidence must be clear, precise and unequivocal." (Citations omitted.) Lewis v. Lewis, 162 Conn. 476, 481, 294 A.2d 637 (1972). Ordinarily to prove fraud a party must show that there was a representation of a fact; that the fact, if disclosed, was untrue when asserted; that it was known by the speaker to be untrue; that the purpose of the statement was to induce the listener to act on it, and that the listener did rely upon it and act to his injury. Ceferatti v. Boisvert, 137 Conn. 280, 283, [ 77 A.2d 82 (1950)]. The same rules apply to fraud by concealment or omission, except that the party charged either must have had a duly to disclose or the effect of the silence may be such as to actually produce a false impression in the mind of the other party. Egan v. Hudson Nut Products, Inc., 147 Conn. 344, 347, 160 A.2d 903 (1960).
Regarding the duty to disclose, our Supreme Court, in Macomber v. Travelers Property Casualty Corp., 277 Conn. 617, 894 A.2d 240 (2006), stated that "[a] failure to disclose can be deceptive only if, in light of all the circumstances, there is a duty to disclose." (Internal quotation marks omitted.) Id., 622. On the face of the record, there are no allegations that establish the existence of any duty owed by the defendants to the plaintiff to disclose the decedent's medical condition. As such, the plaintiff has failed to allege fraud by concealment through a failure to disclose information.
"[S]ilence . . . cannot give rise to an action . . . to set aside [a] transaction as fraudulent. Certainly this is true as to all facts which are open to discovery upon reasonable inquiry . . ." (Internal quotation marks omitted.) Macomber v. Travelers Property Casualty Corp., supra, 277 Conn. 622. In her affidavit, the plaintiff affirms that she "visited Ralph [the decedent] two times in the nursing home in the east. Neither time did he know me or could he communicate with me." This statement impliedly affirms that the plaintiff was aware of the decedent's debilitated mental condition prior to his death. Consequently, even viewed in the most favorable light, the plaintiff does not establish that the defendants' alleged fraudulent concealment created a false impression in her mind. The information regarding the decedent's mental condition was clearly open to discovery upon reasonable inquiry, as the plaintiff attests that she knew of the decedent's mental condition before his death.
Thus, the plaintiff has not alleged facts sufficient to support a claim of fraudulent concealment, and, therefore, has not alleged "exceptional circumstances." Accordingly, the court lacks subject matter jurisdiction over this action. The defendants' motions to dismiss are granted for lack of subject matter jurisdiction.
The court is mindful of the fact that at least two Superior Court decisions have reached a contrary result, but notes that the allegations of fraud in those instances were far more egregious than in the present matter. For instance, in Daddona v. Kindred Nursing Centers, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 4011072 (August 14, 2007, Karazin, J.), the court denied a motion to dismiss an action brought in equity where the plaintiff alleged that the Probate Court improperly removed an executor without conducting a hearing. Similarly, in Pignatato v. Cappiello, Superior Court, judicial district of Fairfield, Docket No. 319464 (May 16, 1996, Levin, J.), the plaintiff alleged that the defendants submitted a false affidavit to the Probate Court and fraudulently withheld the plaintiff's location to keep him from attending the probate proceeding. No similar allegations exist in the present case, where the plaintiff merely alleges that the defendants failed to disclose the decedent's illnesses before she signed a waiver of her right to protest the validity of the will.
Having determined that the court lacks jurisdiction for this issue, it need not address the defendants' remaining arguments relating to insufficiency of process of service and return of process to the court.
Conclusion
For the foregoing reasons, the motion to dismiss is granted, as the court is without subject matter jurisdiction to hear this complaint.