Opinion
CV126014430S
10-02-2017
Conrad Membrino v. Ralph Membrino et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS
Mark H. Taylor, Judge.
I
BACKGROUND
The defendants, Ralph Membrino both individually and as a conservator, moved to dismiss this appeal from the Waterbury Probate Court on April 25, 2017, as moot, upon the death of the conserved person, Emily S. Membrino. The plaintiff, Conrad Membrino, objected to the dismissal of this appeal on May 25, 2017. The motion to dismiss and objection thereto were fully briefed by the parties, and were heard by the court on June 26, 2017.
This decision was temporarily delayed upon discovery that the matter was set down for three pretrials with the court between 2014 and 2017, at which no substantive negotiations occurred. In light of this procedural history, the court required waivers from the parties and their attorneys, pursuant to Krattenstein v. G. Fox & Co., 155 Conn. 609, 615-16, 236 A.2d 466 (1967). In lieu of an appearance in court, as required by Krattenstein, the waivers were set forth in the form of affidavits due to hardship.
The probate decree underlying this appeal involved the contested and involuntary conservatorship of the parties' mother, Emily Membrino. In the decree of the probate court issued on March 8, 2012, Ralph Membrino was appointed conservator of her estate and Roberta Minuto was appointed conservator of her person. This appeal from the decree was filed by the plaintiff, their brother, in the Superior Court on April 20, 2012; however, no stay of the conservatorship was requested. Emily Membrino died on September 26, 2014. Subsequently, the Probate Court approved the final account submitted by Ralph Membrino on September 29, 2015, after which the conservatorship was closed, and from which there has been no appeal. For these reasons, the defendants assert that the case is moot and there is no justiciable claim before the court.
In his appeal, and in objecting to its dismissal, the plaintiff asserts that, even prior to the conservatorships, he has long disputed the need and appropriateness of his siblings' control over the estate and person of his mother. The plaintiff makes particular note of the defendants' unsuccessful attempt to have Emily Membrino declared incompetent on September 28, 2007, years before she was conserved involuntarily by the probate court in 2012. Operating under a durable power of attorney for many years, the plaintiff asserts that Ralph Membrino inappropriately engaged in numerous instances of self-dealing in exercising control over their mother's finances, contrary to her wishes.
Upon the formal revocation of Ralph Membrino's durable power of attorney on February 15, 2012, Emily Membrino concurrently executed a new durable power of attorney, appointing the plaintiff and the defendant, Ralph Membrino, joint authorization over her finances. Shortly thereafter, the conservatorship appealed from herein was decreed by the Waterbury Probate Court on March 8, 2012.
The plaintiff contends in his appeal that " his mother suffered significantly and unnecessarily under the conservatorship imposed involuntarily upon her due to the actions of the court appointed conservators of her person and estate." The plaintiff claims that the Probate Court erred in making its decree in that it failed to consider, inter alia, the abilities and preferences of Emily Membrino, that Ralph Membrino and Roberta Minuto were inappropriate conservators, as well as relevant evidence that contravened the court's decree.
Now as coexecutor of Emily Membrino's estate pursuant to her last will and testament, the plaintiff has obtained access to his mother's medical records. Based upon his review of these records and his investigation into the facts and circumstances of the involuntary conservatorship, the plaintiff claims to have discovered evidence that his mother never suffered from dementia, thereby rendering the conservatorship unnecessary and inappropriate. The plaintiff also claims that he has evidence of a conspiracy between the conservators and other relatives who had a significant financial interest in having Emily S. Membrino conserved involuntarily, as well as the physician who authored and signed the medical report that led to his mother's improper conservation. In light of the foregoing, the plaintiff alleges that the decree of the probate court was based on false or fabricated medical evidence, fraud, collusion, and perjury.
With these claims and causes of action in mind, the plaintiff objects to the dismissal of the appeal because the defendants would continue to be cloaked with quasi-judicial immunity as duly appointed conservators.
II
DISCUSSION
A
Appeals from Probate
" [A]n appeal from a probate order or decree to the Superior Court is not a civil cause of action. It has no more of the ordinary attributes of a civil action than the original proceedings in the court of probate . . . [A]ppeals from probate are not civil actions because it has always been held that the Superior Court, while hearing appeals from probate, sits as a court of probate and not as a constitutional court of general or common-law jurisdiction." (Internal quotation marks omitted.) In re Probate Appeal of Cadle Co., 152 Conn.App. 427, 439, 100 A.3d 30 (2014). " The Superior Court may not consider or adjudicate issues beyond the scope of those proper, for determination by the order or decree attacked . . . Inasmuch as the motion for the appeal is made in the Court of Probate and forms a part of the proceedings in that court, no amendment to it may be made in the Superior Court. The Superior Court, therefore, cannot enlarge the scope of the appeal." (Emphasis in original.) Id., 439. Moreover, " [a]n appeal from probate does not vacate the decree appealed from nor does it lift the entire cause from the probate court into the superior court. On the contrary, it leaves the entire matter as it was in the probate court, there to be continued with and completed according to law, presenting in the meanwhile to the superior court for redetermination, after a retrial of the facts, the special and limited issues embraced within the particular decree appealed from ." (Emphasis in original.) Id., 440.
General Statutes § 45a-186(a) requires that certain proceedings, including all appointments of conservatorship, be heard on the record. When probate hearings are conducted on the record, the Superior Court does not conduct a trial de novo, but rather considers the appeal on the record. General Statutes § 45a-186b 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, conclusions 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 record, or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
B
Mootness and Justiciability
" [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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). Specifically, Practice Book § 10-30(a) provides that: " A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." " [A] motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts." May v. Coffey, 291 Conn. 106, 108, 967 A.2d 495 (2009).
" [J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter . . . A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction." (Internal quotation marks omitted.) Janulawicz v. Commissioner of Correction, 310 Conn. 265, 270, 77 A.3d 113 (2013).
" Mootness implicates the court's subject matter jurisdiction and is thus a threshold matter for us to resolve . . . It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow . . . An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal . . . When . . . events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." (Citations omitted; internal quotation marks omitted.) Ayala v. Smith, 236 Conn. 89, 93-94, 671 A.2d 345 (1996). " In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way." (Internal quotation marks omitted.) RAL Mgmt. v. Valley View Assocs., 278 Conn. 672, 691, 899 A.2d 586 (2006).
" [U]nder this court's long standing mootness jurisprudence . . . despite developments during the pendency of an appeal that would otherwise render a claim moot, the court may retain jurisdiction when a litigant shows that there is a reasonable possibility that prejudicial collateral consequences will occur." Putman v. Kennedy, 279 Conn. 162, 169, 900 A.2d 1256 (2006). " [T]o invoke successfully the collateral consequences doctrine, the litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur. Accordingly, the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not. This standard provides the necessary limitations on justiciability underlying the mootness doctrine itself. Where there is no direct practical relief available from the reversal of the judgment, as in this case, the collateral consequences doctrine acts as a surrogate, calling for a determination whether a decision in the case can afford the litigant some practical relief in the future . . . The array of collateral consequences that will preclude dismissal on mootness grounds is diverse, and includes harm to a defendant's reputation as a result of the judgment at issue." (Citations omitted.) Id., 169-70.
Our Appellate Court has addressed the issue of mootness within the context of a probate order of conservatorship on several occasions, and it has held that the appropriateness of the appointment itself is a claim that can continue to represent a continuing case or controversy, even if the conservatorship ends or is terminated. In Stanley's Appeal from Probate, 80 Conn.App. 264, 834 A.2d 773 (2003), two conservators were appointed over the estate and person of Ann Stanley. An appeal was taken from that decree, and during the pendency of that appeal, the appointments were terminated upon Ann Stanley's motion. Sometime thereafter, Ann Stanley died. The trial court concluded that the order terminating the conservatorships mooted the probate appeal. On appeal to the Appellate Court the question was whether the termination of the conservatorships rendered the case moot. The court held that a justiciable case still existed noting: " Ann Stanley was not seeking merely to terminate a conservatorship, but also to have the appointment itself set aside . The order . . . which terminated the conservatorship, did not cause the controversy to cease to exist." (Emphasis added.) Id., 267-68. See also Wright v. Leonardi, 149 Conn.App. 831, 837-38, 89 A.3d 354 (2014) (" The question on appeal to this court [in Stanley's Appeal from Probate ] was whether the termination of a conservatorship rendered moot the issue of whether a conservator should have been appointed in the first instance . . . We held that it did not." [Citation omitted.])
The court also noted that a pending appeal of fees given to the conservators was further cause for the case not being rendered moot. Stanley's Appeal from Probate, supra, 80 Conn.App. 268. This, however, was a second independent rationale for the court exercising jurisdiction. The holdings of other courts buttress interpretation. See Wright v. Leonardi, 149 Conn.App. 831, 838 n.6, 89 A.3d 354 (2014) (" [a] second rationale for our conclusion in Stanley's Appeal from Probate . . . that the appeal was not moot was that the appellant challenged the Probate Court's award of fees." [Citation omitted.]); Berry v. Skyview Center, Superior Court, judicial district of New Haven, Docket No. CV-15-5035480-S, (March 23, 2016, Ecker, J.) (" [t]he Appellate Court also noted, as an independent basis for exercising jurisdiction, that a fee dispute regarding the conservators remained unresolved"). Sherman v. Kowalyshyn, Superior Court, judicial district of Hartford, Docket No. CV-10-6012430-S, (July 22, 2011, Peck, J.) (" the language of the decision clearly states that the appeal was also not moot because the plaintiffs had contested the validity of the appointment itself").
Following this ruling, courts have generally held that an order of conservatorship is only appealable if it is final, and the appropriateness of the appointment itself still presents a case or controversy. See Wright v. Leonardi, supra, 149 Conn.App. 837-38 (case moot where subsequent final conservator appointed after temporary appointment; court noted that " [t]he appointment [of the final conservator] was a subsequent event, a final judgment from which no appeal was taken that resolved the issues of whether a conservator should be appointed, and if so whom that person should be"); Vredenburgh v. Norwalk Probate Court, 118 Conn.App. 436, 441, 984 A.2d 773 (2009) (subsequent appeal of final conservatorship mooted appeal of temporary conservatorship appointment).
Judges of the Superior Court have likewise followed these rulings, and noted several other basis upon which appeals from an order of conservatorship may not be moot. In Berry v. Skyview Center, Superior Court, judicial district of New Haven, Docket No. CV-15-5035480-S, (March 23, 2016, Ecker, J.), the court was faced with an appeal regarding, inter alia, the appointment of an involuntary conservator over a person. The defendant argued the issue was moot, as the conservatorship was terminated during the pendency of the appeal. The court held otherwise, noting: " [The plaintiff] claims that the involuntary appointment of a conservator of the person entails potential collateral consequences which do not disappear merely because the conservator resigns or the conservatorship terminates. This court agrees. Berry was marked with a stigmatizing juridical status when a conservator of her person was appointed . . . That appointment was predicated on a judicial determination that Berry was, among other things, not competent to care for herself in certain respects. Such a determination, once made, casts a long shadow, regardless of the later resignation or removal of the conservator or termination of the conservatorship, because it might cause people to question the fitness or competence of a person once tainted by such a finding. Berry has a right to have this mark removed if it should not have been imposed in the first place. For this and related reasons, the 'collateral consequences' doctrine saves this case from mootness."
In Sherman v. Kowalyshyn, Superior Court, judicial district of Hartford, Docket No. CV-10-6012430-S, (July 22, 2011, Peck, J.), the court was faced with the appeal of a parental guardianship that was suspended. Subsequent to the appeal, guardianship was reinstated and the defendant moved to dismiss the case as moot. The court in holding that the case still presented a justiciable controversy stated: " The present appeal is similar to Stanley's Appeal from Probate, inasmuch as Sherman brought the appeal not merely to seek reinstatement of her status as a plenary guardian of her daughter, but also to have the suspension of her guardianship itself set aside . . . [The order reinstating guardianship] in this case did not settle the issue of whether the Probate Court's suspension of [the plaintiff's] status was valid."
In the present case, the plaintiff's appeal is not moot. The plaintiff is not merely seeking to have the conservatorship terminated; he is also seeking to have the appointment itself set aside. Consequently, that the conservatorship has ended does not resolve the issue of whether an order of appointment was appropriate or justified in the first place. The plaintiff in his complaint is specifically appealing the Probate Court's determination that his mother required conservators for her person and estate. The setting aside of these appointments presents relief the court could potentially afford him. See Stanley's Appeal from Probate, supra, 80 Conn.App. 268; Sherman v. Kowalyshyn, supra, Superior Court, Docket No. CV-10-6012430-S, .
Additionally, collateral consequences exist here in the form of the stigma associated with involuntary conservatorships as well as the defendants' quasi-judicial immunity, which further support a finding that this matter is justiciable. In imposing an involuntary conservatorship over a person, the Probate Court is required to find by clear and convincing evidence that the person cannot care for themselves or manage their own affairs. See General Statutes § § 45a-650(f)(1) and (2). Such a determination comes with a stigmatizing effect that is not remedied by the conservatorship's subsequent termination. See Berry v. Skyview, supra, Superior Court, Docket No. CV-15-5035480-S, n.3 (regardless of current status of conservatorship its stigmatizing effect provided a collateral consequence rendering the case justiciable). Furthermore, another collateral consequence is present in the form of the defendants' quasi-judicial immunity. Conservators are protected with quasi-judicial immunity if their acts are authorized or approved by the probate court. See Gross v. Rell, 304 Conn. 234, 252, 40 A.3d 240 (2012). The plaintiff has represented in his brief, as well as at the hearing in this matter, that he is considering further legal action against the defendants. The plaintiff alleges that the conservatorships were procured by fraud and that the defendants have not acted in the best interest of Emily Membrino, to both her and the plaintiff's detriment. To dismiss the appeal in this instance then would cloak the defendants in quasi-judicial immunity and hinder recourse on the part of the plaintiff. Consequently, setting aside the order appointing the defendants as conservators in the first instance presents practical relief available to the plaintiff. Accordingly, the plaintiff's appeal is not moot.
III
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss is denied.