Opinion
No. CV93-0527722
February 16, 1994
RULING RE: DEFENDANT'S MOTION TO DISMISS (FILE #104)
This action is an appeal from the decree of the Hartford Probate Court allowing and approving defendant's annual and final accounts as the conservator of plaintiff's estate. Defendant has moved to dismiss the appeal under Practice Book Sections 142 and 143(4) and (5).
Plaintiff's estate was placed under conservatorship on August 5, 1991; plaintiff was restored to legal capacity on January 30, 1993. On June 10, 1993, the Probate Court allowed the conservator's annual account, which covered the period from August 5, 1991 to August 4, 1992, and her final account covering the period from August 5, 1992 thru March 28, 1993. On June 24, 1993, plaintiff filed a motion for appeal in the Probate Court alleging that he was aggrieved by the decree allowing said accounts; the motion recited a return date for the appeal in the Superior Court of July 27, 1993. By decree of the Probate Court (Hon. Robert K. Killian, Jr.) dated June 24, 1993, this appeal was allowed, with the return date of July 27, 1993, and it was ordered as follows: "that notice of the appeal be given to [defendant] . . . by some proper officer serving on her in the manner prescribed for the service of civil process a true and attested copy of the motion for appeal and of this order at least twelve days before the return date of the appeal, and that due return of such service be made to the Superior Court and to this Court." The sheriff's return indicates that on July 13, 1993, a certified copy of the motion for appeal, and the probate decree allowing the appeal, were served on defendant, and additionally, on July 15, 1993, such documents were delivered "to the Clerk in Charge of the Superior Court, 95 Washington Street . . ."
After the process had been delivered to the Superior Court Clerk, plaintiff's attorney was notified that the filing fee of $150.00 had not been paid. On July 27, 1993, the fee was paid and another set of the appeal papers was filed with the Superior Court. Thus, the appeal pending in this court bears a file stamp date of July 27, 1993.
Actually, there are two file/stamp dates, both of the Hartford Superior Court, which appear on the papers which were filed: July 27, 1993 and July 28, 1993.
Defendant has moved to dismiss the appeal on the basis that the process was not returned to the Clerk of the Superior Court at least six days before the return date, as required by General Statutes Section 52-46a. In support of the motion to dismiss, defendant has submitted memoranda of law and copies of various legal authorities cited at oral argument. Plaintiff has submitted a memorandum of law in objection to the motion, together with the following annexed documents: (a) sheriff's return dated 7/13/93; (b) form letter from the Hartford Probate Court under cover of which the motion for appeal, and the decree allowing same, were forwarded to plaintiff/appellant's attorney; and (c) the affidavit of plaintiff's attorney dated 12/8/93.
Section 52-46a, entitled "Return of process," provides: "Process in civil actions returnable to the supreme court shall be returned to its clerk at least twenty days before the return day and, if returnable to the superior court, except in summary process actions, to the clerk of such court at least six says before the return day."
In the affidavit, the plaintiff's attorney states that he did not believe a filing fee was necessary in the Superior Court since, at the time taking of the appeal, he had given surety of $150.00 in the Probate Court; that sometime after July 15, 1993, he received a telephone call from the Superior Court Clerk requesting payment of the filing fee of $150.00; and, that on July 27, 1993, he paid the filing fee and filed another copy of the appeal process in the Superior Court.
"For purposes of mesne process, a probate appeal is considered a civil action." Campbell's Appeal, 76 Conn. 284 (1903); Bergin v. Bergin, 3 Conn. App. 566, 568 (1985). Therefore, the process in such an appeal must be returned to the Clerk of Court in conformity with the requirements of Section 52-46a; that is, the process in civil actions must be returned at least six days before the return date. 3 Conn. App. supra at p. 568. A late return of the process does not render an action void, but simply voidable. Bergin v. Bergin, supra p. 569; William J. Petzold, Inc. v. Commissioner of Revenue Services, 39 Conn. Sup. 247, 249 (1984). "`Where the return of service is not timely . . . the courts have uniformly held that the defect cannot be cured by amendment.'" Bergin v. Bergin, supra at p. 569; William J. Petzold, Inc. v. Commissioner of Revenue Services, supra. The rationale is that once the date for return has passed, there is nothing before the court which can be amended. 39 Conn. Sup. supra at p. 249.
Section 52-259 provides that there "shall be paid to the [Clerk] . . . for each civil cause in the superior court, one hundred fifty dollars." It has been held that process is not filed with the court until the payment of the filing fee. See: Van Mecklenburg v. Pan American World Airways, Inc., 196 Conn. 517 (1985); Monsees v. Cigna Prop. Cas. Ins., ___ CSCR ___ (Hfd. J.D. 3/19/93) ("plaintiff's application was `made' at the time of filing, and . . the date the application was `filed' was the date upon which plaintiff paid his filing fee"); Lawrence Memorial Hospital v. Town of East Lyme, et al, 7 CSCR 1265 (New London J.D. 10/23/92) ("initial filing of the appeal unaccompanied by the required entry fee did not constitute a filing."); Sidor v. Connecticut Natural Gas Corporation, et al., 5 Conn. L. Rptr. 259 (Stamford J.D. 11/20/91) ("proper fee was not paid until April 29, 1991 and therefore, the process was not returned to the clerk until that date.").
Here, the return date was July 27, 1993. Section 52-46a requires process in civil actions to be returned to the Clerk "at least six days before the return date." A probate appeal is considered a civil action. Bergin v. Bergin, supra. As the required filing fee was not paid until July 27, 1993, the process was not returned to the court until that date; therefore, the filing was not in conformity with the Section 52-46a time requirement. Accordingly, the appeal is voidable, and since defendant did not waive the defect, this action is subject to dismissal.
Plaintiff maintains that the appeal should not be dismissed because a late return of the process, predicated upon late payment of the filing fee, is merely a "circumstantial" defect within the meaning of General Statutes Section 52-123. "The statute is used to provide relief from defects in the text of the writ itself, but is not available to cure irregularities in the service of return of process." (Emphasis added). Rogozinski v. American Food Service Equipment Corporation, 211 Conn. 431, 434 (1989). Here, as defendant contends, the error concerns the filing and return of process, not mistakes or defects contained in the text of the writ or initiating pleading.
Section 52-123, entitled "Circumstantial defects not to abate pleading," reads: "No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court."
With respect to Section 52-123, the Supreme Court, in Rogozinski, observed that the statute had "`been in existence [over three hundred years] and [had] been preserved [essentially] unaltered during [that] long period of time . . .'" The Court further observed that the enactment "was designed to ameliorate the rigors of the common law that required the precise designation of all persons, whether or not parties to an action." Id. at p. 433-34, citing E. Stephenson, Connecticut Civil Procedure (2d Ed.) Section 105, p. 433.
Rogozinski, like the present case, dealt with a plaintiff's failure to return process to the Clerk at least six days before the return date, as required by Section 52-46a.
Plaintiff further contends that there is language in Coughlan v. Murphy, 134 Conn. 601 (1948) indicating that once an appeal from probate has been "properly" taken and allowed, the jurisdiction of the Superior Court attaches over the cause. However, with regard to whether the appeal was properly taken, the Court in Bergin held that a late return of process constitutes a "substantive defect," and further, that the failure to comply with the statutory requirements deprives the Superior Court of jurisdiction to entertain the appeal. 3 Conn. App. supra at p. 568.
In the court's view, the present case is not controlled by Plasil v. Tableman, 223 Conn. 68 (1992). Plasil was litigation involving a partnership dispute and not an appeal to the Superior Court created and governed by statute. Here, unlike Plasil, there was no original action which had been dismissed with specific leave granted to the plaintiff to cure the defects by re-service of the process, and thereby maintain the action and secure a reinstatement of pre-judgment remedies for which probable cause had been found previously. In this case, the official court file shows this appeal filed on two dates (July 27 and 28, 1993), both of which do not conform to the Section 52-46a time requirement; and, there is no basis on which to conclude that there was a proper filing (with the entry fee) prior to the dates stamped on the process.
Plaintiff admits that the filing fee was not paid until February 27, 1993, which is the earliest date the papers were filed/stamped at the Superior Court Clerk's Office.
In the Plasil case, the Supreme Court, quoting language in Bridgeport v. Debek, 210 Conn. 175, 178 (1989), made reference to "the special circumstances of administrative appeals." Just as the right to appeal from determinations made by administrative agencies exists solely by virtue of statute, the Court in Bergin recognized that the "right to appeal from the decision of a Probate Court is purely statutory . . . and the requirements fixed by statute for taking the appeal must be met." 3 Conn. App. supra at 568. The Bergin court, which dismissed the appeal for noncompliance with Section 52-46a, noted that "time limitations `on the enforcement of a right, created by statute and not existing at common law [are] a part of the right and must be met in order to provide a court with jurisdiction to hear the cause of action.'" Id. at p. 569.
The court regrets the preclusion of plaintiff from asserting claims relating to the conduct of a former fiduciary of his personal estate; and, it is not the court's intention "to exalt technicalities above substance." However, in the court's view, the issue raised on the instant motion is controlled by the Bergin and Van Mecklenberg decisions; it is the court's responsibility to follow and apply established precedents.
In terms of mesne process, a probate appeal is considered a civil action. The time requirements of Section 52-46a pertain to this appeal. Since the filing fee was not paid until July 27, 1993, which is the earliest date the appeal papers were file/stamped in the Superior Court Clerk's office, the requirements imposed by Section 52-46a were not complied with by plaintiff. Therefore, the pending action is voidable; defendant has not waived the late return of process defect. That defect is not circumstantial within the meaning of Section 52-123.
For the reasons stated herein, defendant's motion to dismiss is hereby Granted.
Mulcahy, J.
Endnotes