Opinion
CV125034147S
12-14-2015
Ahlam Shalhout et al, . v. Mohammed Shalhout
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT (#153)
Robin L. Wilson, J.
FACTS
On February 29, 2012, the plaintiffs, Ahlam Shalhout (Ahlam) and Adil Shalhout (Adil) filed this appeal from the 2012 decree of the Probate Court approving the final accounting of the estate of Fatima Shalhout (decedent) and the 2001 decree of the Probate Court approving and admitting the decedent's will into probate. The decedent's estate has been the subject of litigation for nearly ten years since approval of the decedent's last will and testament and admission into probate. Given the long history of conflict with the decedent's estate, the following facts are relevant.
The plaintiffs refer to their complaint as " Motion to Appeal" and " Motion to Revoke Will into Probate."
Ahlam, Adil, and the defendant, Mohmmed Shalhout, are children of the decedent. On August 17, 2000, the decedent signed her last will and testament with witnesses. The decedent named the defendant as executor of her will and made bequeathments of different values and amounts to all of her children. The plaintiffs, in particular, were each bequeathed $10.00. On May 4, 2001, the decedent passed away. On October 5, 2001, the defendant submitted an application to the East Haven Probate Court for approval of the decedent's last will and testament and admission of her last will and testament into probate. On October 31, 2001, the Probate Court, Albis, J, held a hearing on the defendant's application and issued a decree approving and admitting the decedent's will into probate. The plaintiffs allege that they were not aware of matters regarding the estate until around 2008 and did not receive notices of probate hearings until 2011.
On October 5, 2011, a final accounting of the decedent's estate was made. On February 1, 2012, the Probate Court, Keyes, J, approved the final accounting. In its decree, the court noted that the conflicts arising from the decedent's estate were numerous and confusing. The court also noted that up until this hearing, the plaintiffs were cooperative and present at all matters regarding the decedent's estate. Furthermore, the court expressed that given the complexities surrounding the probating of the decedent's estate, the issues were more likely to be resolved in Superior Court.
It appears that no record of the October 2001 and February 2012 probate hearings was made and, thus far, no record of either hearing has been submitted to this court.
After filing their original complaint in the Superior Court, the plaintiffs filed an amended complaint on March 12, 2012. In the first two years of this action in Superior Court, the plaintiffs were self-represented with Ahlam authoring a majority of the pleadings. The plaintiffs seek reversal of the Probate Court's approval of the estate's final accounting and revocation of the admission of the will into probate. The plaintiffs allege that the final accounting is deficient because the defendant fraudulently manipulated the numbers by failing to take into account a number of the estate's debts and including property over which the Connecticut Probate Court had no jurisdiction. The plaintiffs claim due to the defendant's fraudulent conduct, the estate has more assets than it should and appears to have a positive balance when it should have a negative balance. The plaintiffs also allege that based on mistake, fraud and inducement, fraudulent and negligent conduct, obstruction of justice, failure to abide by probate laws, and deprivation of rights, the admission of the will into probate should be revoked.
In addition, the plaintiffs claim that Connecticut does not have jurisdiction over the estate's matters because the majority of the decedent's assets are located in the Virgin Islands; the only asset located in Connecticut is a house in East Haven. Moreover, the decedent spent little time in her East Haven house; she lived abroad or in her home in the Virgin Islands. The plaintiffs request the following relief: reversal of the Probate Court's approval of the estate's final accounting; revocation of the admission of the decedent's will into Connecticut probate; a decree to denounce the authenticity of the decedent's will and to establish that the Virgin Islands probate courts have primary jurisdiction; extradition of the estate's probate to the Virgin Islands; reimbursement of $120,000 to Adil for expenses related to probate of the estate; reimbursement of $8,816.74 to Adil and Ahlam for illegally cashing of savings bonds belonging to the estate; and reimbursement of all legal fees incurred by the plaintiffs.
On March 23, 2012, the defendant filed a motion to dismiss. On September 20, 2014, the court, Wilson, J, denied the motion to dismiss, finding that the plaintiffs' appeal from the February 2012 decree, was timely and that the alleged defects in service of process did not deprive the court of subject matter jurisdiction under General Statutes § 45a-186. On May 18, 2015, the defendant filed a motion for summary judgment on the ground that there is no genuine issue of material fact that the plaintiffs' challenge to the October 2001 probate decree is barred by the statute of limitations and that the court lacks subject matter jurisdiction because Ahlam lacks standing. A memorandum of law accompanied the motion. On June 3, 2015, and again on June 8, 2015 correcting typographical errors, Ahlam filed an objection to the defendant's motion for summary judgment, accompanied by a memorandum of law and exhibits. On July 8, 2015, the defendant filed an answer and special defenses. The defendant denied all of the plaintiffs' allegations. Furthermore, the defendant set out the following special defenses: the plaintiffs' appeal from the Probate Court's decree is untimely; the decedent's last will and testament was executed while the decedent was of the age of majority and of sound and disposing mind and memory; and the plaintiffs lack standing in that they are not aggrieved. On August 19, 2015, counsel for Ahlam filed an objection to the defendant's motion for summary judgment with a memorandum of law and exhibits. The defendant subsequently filed two reply memoranda to each objection to summary judgment on June 8, 2015 and August 21, 2015.
Section 45a-186 sets forth the procedure to file a probate appeal.
The defendant cites to exhibits that have not been attached to his filing with the court. Therefore, the court will not rely on the defendant's reference to, or representations of these exhibits.
Ahlam has been represented by counsel since January 31, 2014.
Oral argument was heard on the motion at short calendar on September 14, 2015. All parties were present except Adil. At short calendar, this court narrowed the court's review of the plaintiffs appeal to issues pertaining to the February 2012 decree. The court also requested the parties to submit supplemental briefs on standing, focusing on aggrievement, tolling of the statute of limitations, and on the propriety of summary judgment in probate appeals. On September 24, 2015, and on October 27, 2015, the defendant and the plaintiff filed post-argument supplemental briefs. This case is schedule for trial on March 29, 2016.
Ahlam's counsel explained that Adil has not communicated with her or Ahlam since the commencement of this action in the Superior Court. Although this appeal was filed on behalf of Adil and Ahlam, Ahlam has been the only plaintiff to file responsive pleadings in the present action. Therefore, references to the plaintiff are to Ahlam.
While this court gave the parties until September 28, 2015, to file supplemental briefs, the plaintiff requested and was granted an extension of time to file her brief.
DISCUSSION
I
ROLE OF THE SUPERIOR COURT IN PROBATE APPEALS
" [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. It tries the questions presented to it de novo, but in so doing it is . . . exercising a special and limited jurisdiction conferred on it by the statute authorizing appeals from probate." (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; internal quotation marks omitted.) 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 altered; internal quotation marks omitted.) Id., 440.
In the present case, the plaintiff is appealing from the February 2012 decree, approving the final accounting of the estate, and challenging the admission of the will as entered into probate in the October 2001 decree. The appeal of the February 2012 decree is timely as evidenced by this court's ruling on the defendant's motion to dismiss. Accordingly, the plaintiffs challenge to the February 2012 decree is procedurally an appeal. Therefore, the Superior Court must review the plaintiff's complaint regarding this decree as a court of limited jurisdiction.
As to the plaintiffs challenge to the October 2001 probate decree, the plaintiff argues that it is an equitable attack on the October 2001 decree. The plaintiff claims that because she raises complex legal questions of fraudulent activities in relation to the administration of the estate, the Superior Court may sit as a court of general jurisdiction and exercise its equitable powers. With regard to the October 2001 decree, the defendant contends that the plaintiff made an appeal over which the Superior Court may not exercise its equitable powers because it is a court of limited jurisdiction when hearing a probate appeal. A closer examination of the plaintiffs complaint and responsive pleadings is necessary to determine whether the plaintiff made an appeal from the October 2001 decree or made a direct, equitable attack on the October 2001 decree given her challenge is made over ten years after the decree was issued.
The plaintiff relies on Haverin v. Welch, 129 Conn. 309, 316, 27 A.2d 791 (1942), which states: " [I]n proper cases, [the Superior court may] grant relief against decrees of the Probate Court procured by fraud, accident, mistake and the like." In Haverin, the plaintiff appealed a probate decree admitting the decedent's will into probate. Id., 311. The plaintiff alleged that she had no notice or knowledge of the hearing or admission of the will into probate. Id. The plaintiff " also alleged that the decree had been procured through the fraud of the defendant in concealing from the court the existence of the cousins of the full blood and that plaintiff had been deprived of an opportunity to be heard because of the lack of notice to her." Id. The Supreme Court noted that the plaintiff received notice of the admission of the will into probate on November 25, 1939 and filed a complaint to challenge the probate decree on September 13, 1940. Id. The Supreme Court found no error in the trial court's dismissal of the plaintiff's appeal and concluded that because the plaintiff delayed making a timely appeal, " [the plaintiffs] only recourse now for relief upon the ground of fraud 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." Id., 316. In coming to this conclusion, the court in Haverin cited to Folwell v. Howell, 117 Conn. 565, 169 A. 199 (1933). In Folwell, the plaintiffs filed a complaint in the Superior Court to challenge admission of the decedent's will into probate. Id. The plaintiffs alleged that the decree had been procured by fraud, imposition, and undue influence over the decedent. Id., 567. The plaintiffs explained that they were invoking the equitable powers of the Superior Court to challenge the validity of the will because they had not learned of the defendant's fraud in relation to the decedent's will until the time for making an appeal had lapsed. Id. The Supreme Court overruled the Superior Court's dismissal of the plaintiffs' appeal, holding that the plaintiffs' allegations of fraud, imposition, and undue influence were sufficient for the Superior Court to consider the plaintiffs' claims. Id., 571.
In Haverin and Folwell, the Supreme Court articulated that appealing to the Superior Court's equitable powers to challenge a probate decree is available to plaintiffs when a timely appeal was not made because of the defendants' wrongdoing or the court's error or exceptional circumstances existed that allowed the trial court to hear an equitable attack on a probate decree in lieu of or subsequent to appeal. See Ferris v. Faford, 93 Conn.App. 679, 691, 890 A.2d 602 (2006) (" Only in exceptional circumstances, such as fraud, mistake or a like equitable ground, may a court consider an equitable attack on a probate order or decree"); Del Vecchio v. Del Vecchio, 146 Conn. 188, 192-93, 148 A.2d 554 (1959) (" Since the time in which to appeal from probate has expired, the sole method of avoiding the effect of the decree admitting the will to probate is through the successful prosecution of this equitable proceeding . . . A decree of a Probate Court can be set aside only upon appeal to the Superior Court, and here, as pointed out, such an appeal is impossible." [Citation omitted; emphasis added.]); Miller v. McNamara, 135 Conn. 489, 496, 66 A.2d 359 (1949) (affirming that " the Superior Court has no jurisdiction to set aside a decree of a Probate Court except upon an appeal, " but because plaintiff relied upon defendant's fraudulent statements and did not file appeal, plaintiff's attack on probate decree made three years later was direct, equitable attack over which Superior Court could exercise general jurisdiction).
This understanding has also been expressed in relevant Superior Court cases involving similar issues raised in Haverin and Folwell . See e.g., Holliday v. Johnson, Superior Court, judicial district of Fairfield, Docket No. CV-11-5029509-S (January 24, 2012, Gilardi, J.T.R.) (where plaintiff filed complaint in Superior Court alleging that because defendants misled plaintiff, plaintiff could not file timely appeal and court ruled: " Our Supreme Court has stated that if an aggrieved party fails to file timely a probate appeal, '[the] only recourse . . . for relief . . . would be by an appeal to the general equitable power of the Superior Court, which may, in proper cases, grant relief against decrees of [a] Probate Court procured by fraud, accident, mistake and the like . . .'" [Citation omitted; emphasis added.]); Atkinson v. Nixon, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-094015655-S (August 12, 2009, Pavia, J.) (where plaintiff alleged that due to defendants' fraudulent concealment, plaintiff could not file timely appeal and court ruled: " [W]here a plaintiff's appeal from probate was untimely, the Supreme Court [has] stated that [the plaintiffs] 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." [Emphasis added.]); Pignataro v. Cappiello, Superior Court, judicial district of Fairfield, Docket No. 319464 (May 22, 1996, Levin, J.) (where plaintiff alleged that due to defendants' filing of false affidavit and fraudulently withholding plaintiff's location from probate court, plaintiff could not file timely appeal and court ruled: " [W]here a plaintiff's appeal from probate was untimely, the supreme court stated that [h]er 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." [Citations omitted; emphasis added; internal quotation marks omitted.]); Reynolds v. Owen, 34 Conn.Supp. 107, 114, 380 A.2d 543 (1977) (" The present action is not before the court on an appeal and the record fails to indicate whether the plaintiff has separately appealed an order of the Probate Court regarding the validity of [decedent's] will. Exceptional circumstances exist, however, in which the court will consider an attack on a probate order or decree in lieu of or subsequent to appeal. For example, the court will entertain an equitable proceeding directly attacking a prior judgment or decree if it is alleged that the judgment or decree is invalid because of fraud or mistake entering into its procurement.").
Furthermore, in related Superior Court cases, the courts have addressed their ability to exercise general jurisdiction over equitable attacks on probate decrees as a question of subject matter jurisdiction. In such cases, the courts have determined their ability to hear an equitable attack on a probate decree based on whether a plaintiff sufficiently pleaded a basis for an equitable attack. See Atkinson v. Nixon, supra, Superior Court, Docket No. CV-09-4015655-S (dismissing plaintiff's complaint requesting revocation of decedent's will into probate on basis of fraudulent concealment because plaintiff failed to allege facts sufficient to support claim of fraudulent concealment, and therefore, plaintiff failed to allege exceptional circumstances to trigger court's ability to hear equitable attack on probate decree); Daddona v. Kindred Nursing Centers East, LLC, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-074011072 (August 14, 2007, Karazin, J.) (finding that plaintiff invoked court's equitable powers and therefore court had subject matter jurisdiction because plaintiff's complaint contained number of allegations that raised issues with his removal as executor and his removal as conservator of decedent, namely, that plaintiff was removed as trustee and conservator without hearing); Pignataro v. Cappiello, supra, Superior Court, Docket No. 319464 (finding that plaintiff alleged equitable cause of action, independent of statutory right to appeal probate decree, because plaintiff's complaint contained specific allegations of fraud and collusion by defendants, namely, that defendants submitted false affidavit to Probate Court and withheld plaintiff's location to prevent him from attending probate proceedings).
" 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; emphasis added; internal quotation marks omitted.) Cavallo v. Derby Savings Bank, 188 Conn. 281, 284-85, 449 A.2d 986 (1982). " [A]lthough equity has, in general, the same power to grant relief against probate judgments as against ordinary judgments, (s)uch relief can be granted only if the court of equity concludes that the probate decree attacked is, or at least should be treated as, void because of fraud, mistake or a like equitable ground." (Emphasis added; internal quotation marks omitted.) Lewis v. Lewis, 162 Conn. 476, 480, 294 A.2d 637 (1972). " Under the common law . . . it is well settled that the essential elements of fraud are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury . . . All of these ingredients must be found to exist." (Citation omitted; internal quotation marks omitted.) Ferris v. Faford, supra, 93 Conn.App. 692 (case in which admission of will into probate was challenged on the basis of fraud for failure to present most recent will and codicil to Probate Court despite knowledge of their existence).
In the present case, on the face of the complaint, the plaintiff appears to make a direct, equitable attack on the October 2001 probate decree. The plaintiff requests that the Superior Court revoke the decedent's will from probate because it is not valid. The plaintiff alleges that the defendant wrongfully influenced the decedent's will. Specifically, the plaintiff alleges that the decedent was known to be fair and impartial to all her children, which is not reflected in her last will and testament. In addition, the plaintiff claims that there is no evidence that an impartial Arabic translator was present at the time the decedent signed her last will and testament to ensure that she did so with full knowledge of and consent to the contents of the last will and testament. According to the plaintiff, the decedent could neither read nor write English and that a relationship of trust and reliance was created because of the decedent's illiteracy. In support of this allegation, the plaintiff provides a letter from a close family friend to attest to the decedent's illiteracy and reliance on her children to interpret English. The plaintiff offers no other evidence to support her allegations. The plaintiff claims that the defendant took advantage of the decedent's reliance and thereby influenced the contents of the will through fraud. Per the legal standard, however, the court cannot infer or presume fraud from only allegations and scant evidence of the decedent's illiteracy and that the defendant took advantage of the decedent's illiteracy. Thus, the plaintiff's allegations are insufficient to show that the defendant made an untrue representation of fact, that the defendant knew this representation to be untrue, that it was made for the purpose of the decedent or plaintiff to act upon it, and that the decedent or plaintiff was induced to act and did so to their injury.
The plaintiff also alleges that the will should be revoked because of the number of accounting errors that fail to take into account various debts the estate owes and subsequent liens placed on the estate for these debts. Although related to the estate, these allegations do not show how the will was a product of fraud or that the decree approving and admitting the will into probate was procured by fraud. These allegations speak more to the administration of the estate, which is unrelated to the approval and admission of the decedent's will into probate. Moreover, in the plaintiff's response to the defendant's motion for summary judgment, the plaintiff claims that she did not receive notice of the hearing on the approval and admission of the decedent's will into probate, which deprived the plaintiff of the ability to raise a proper objection to the approval and admission of the will. The plaintiff also claims that she did not become aware of or involved in the estate's affairs until around 2008 and did not receive notices of probate hearings until around 2011. The plaintiff as an heir, however, fails to clarify as to how or why she received no notice and why she lacked information regarding the estate's affairs. Nor does the plaintiff make allegations that she did not receive notice due to exceptional circumstances such as fraud or mistake or some misconduct by the defendant or error by the court. Furthermore, the plaintiff has not alleged that her lack of notice was not due to her own negligence or mistake. Consequently, the plaintiff's allegations of fraud are not a sufficient equitable attack on the October 2001 probate decree. Accordingly, the court's subject matter jurisdiction over the plaintiff's equitable attack on the October 2001 decree is lacking and the plaintiff's challenge to the October 2001 decree is therefore dismissed.
II
PROPRIETY OF SUMMARY JUDGMENT IN PROBATE APPEALS
At short calendar, the court requested additional briefing on the issue of whether summary judgment is proper in a probate appeal. The defendant relies on Stuart v. Freiberg, 316 Conn. 809, 116 A.3d 1195 (2015), as standing for the Supreme Court's tacit approval of the propriety and use of motions for summary judgment in probate appeals. Alternatively, the defendant argues that this court should construe his motion for summary judgment as a motion to dismiss since he challenges the plaintiff's standing, which goes to subject matter jurisdiction. The plaintiff offers no additional briefing or arguments on this matter. First, the defendant misconstrues the holding in Stuart . The court in Stuart reviewed a motion for summary judgment made in a civil action, not in a probate appeal. The civil action involved claims against the defendant, an accountant involved in the estate's finances, for fraud, negligent misrepresentation, and accounting malpractice. Id., 816-17. The plaintiffs did not bring an action in Superior Court to challenge any prior probate decree or order. Id. The prior probate proceeding involved the removal of the estate's fiduciary, which was ultimately unsuccessful. Id., 813. Therefore, the Supreme Court in Stuart was not reviewing a motion for summary judgment raised in a probate appeal rather in a civil action. Id.
Second, it should be noted that this court has previously ruled that summary judgment is not appropriate in probate appeals. See Connecticut Dept. of Developmental Services v. New Haven Probate District, Superior Court, judicial district of New Haven, Docket No. CV-10-6010491-S (August 26, 2013, Wilson, J.) (denying defendant's motion for summary judgment because probate appeals are not " actions" within meaning of Practice Book § 17-44, which allows for summary judgment in any " action"). This court in Connecticut Department of Developmental Services, agreed with the decision in In re Palmer, Superior Court, judicial district of Fairfield, Docket No. 074022946 (October 7, 2010, Levin, J.) . The court in In re Palmer applied principles of statutory interpretation and looked to appellate authority interpreting the nature of the role of the Superior Court in hearing probate appeals to reconcile Practice Book § 17-44 regarding summary judgment and § 10-76(a) regarding probate appeals. Specifically, the court sought to reconcile the phrase " in any action" as used in § 17-44 and the phrase " pleadings thereafter shall follow in analogy to civil actions" as used in § 10-76(a). The court noted that the phrase at issue in § 10-76(a) was interpreted by the Supreme Court in Slattery v. Woodin, 90 Conn. 48, 96 A. 178 (1915). The Supreme Court in Slattery explained: " The phrase 'in analogy to civil actions' expresses the proper status of an appeal from probate, as a special proceeding authorized by statute, but not a civil action. Independently of the language of the rule, appeals 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." Id., 51.
Practice Book § 17-44 provides in relevant part: " In any action, including administrative appeals which are enumerated in Section 14-7, any party may move for a summary judgment as to any claim or defense as a matter of right at any time if no scheduling order exists and the case has not been assigned for trial."
Book § 10-76(a) provides: " 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.
Furthermore, the court in In re Palmer noted that " it is a rule of construction of the Practice Book that no word or phrase is to be treated as superfluous." (Internal quotation marks omitted.) In re Palmer, supra, Superior Court, Docket No. 074022946 . Moreover, " [t]he legislature's use of words to itemize the situations that bring a statute into play [i.e., in Practice Book § 13-2] connotes the legislative intent to exclude that which is not included [in Practice Book § 17-44]." Id. Based on these principles of statutory interpretation, the court concluded: " [I]t is telling that Practice Book § 13-2 defining the scope of discovery, provides: 'In any civil action, in any probate appeal, or in any administrative appeal where the judicial authority finds it reasonably probable that evidence outside the record will be required, a party may obtain . . . discovery of information.'" Id. " If a probate appeal inhered in the word 'action' in Practice Book § 17-44, as the plaintiff maintains, it would inhere in the same word in § 13-2 and it would have been unnecessary for the drafters to expressly mention probate appeals in the latter section. That they did is strong evidence that a probate appeal is not an action." (Citations omitted.) Id. Thus, the court in In re Palmer concluded that probate appeals are not actions within the meaning of § 17-44 and therefore summary judgment is not appropriate in probate appeals. Id. Given the prior ruling of this court, consistent with In re Palmer, the defendant's motion for summary judgment on this procedural ground is denied.
III
SUBJECT MATTER JURISDICTION-LACK OF STANDING
Although the defendant's motion for summary judgment is procedurally improper, this court must address the issue of subject matter jurisdiction whenever it is raised. " It matters not how or by whom the question of [subject matter] jurisdiction is raised . . . Because subject matter jurisdiction cannot be conferred by waiver or consent . . . the court must address the question, suo motu if necessary, even in the absence of a motion ." (Citations omitted; emphasis added.) Manning v. Feltman, 149 Conn.App. 224, 236, 91 A.3d 466 (2014). " [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).
" Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . In other words, [s]ubject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it . . . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citations omitted; internal quotation marks omitted.) New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 334-35, 857 A.2d 348 (2004).
" The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003), superseded by statute on other grounds as recognized by Flanagan v. Blumenthal, 100 Conn.App. 255, 260, 917 A.2d 1047 (2007). " [I]t is the burden of the party who seeks exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute . . ." (Internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009). " If . . . the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed." (Internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).
In the present case, the defendant argues that the plaintiff lacks standing in that she is not an aggrieved party for purposes of this probate appeal. Specifically, the defendant claims that the plaintiff lacks aggrievement as to (1) the plaintiff's claim for $8,816.74 for illegal cashing of savings bonds; (2) Adil's claim for reimbursement of $120,000 for expenses related to the probate of the estate; and (3) the plaintiff's claim that the specific bequest of $10.00 should be modified. Moreover, the defendant argues that the doctrine of invited or induced error bars appellate review of the plaintiff's complaint. The defendant contends that because the plaintiff did not appear at the hearing regarding the approval of the final accounting, the plaintiff's aggrievement is self-induced. The defendant, therefore, claims that the court should not hear the plaintiff's claims that were due to her error out of fairness to the defendant and the Probate Court. In response, the plaintiff maintains that she is properly aggrieved because she is the decedent's daughter and an heir at law as evidenced by her bequeathment in the decedent's will. The plaintiff further argues that as an heir of the estate, she has standing to question the administration of the decedent's estate and that the mismanagement and improper administration of the estate has allegedly caused aggrievement to her.
The defendant cites Snowdon v. Grillo, 114 Conn.App. 131, 139, 968 A.2d 984 (2009), which explains: " [The Appellate Court] routinely has held that it will not afford review of claims of error when they have been induced. [T]he term induced error, or invited error, has been defined as [a]n error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial court to make the erroneous ruling . . . It is well established that a party who induces an error cannot be heard to later complain about that error . . . This principle bars appellate review of induced nonconstitutional and induced constitutional error . . . The invited error doctrine rests on the principles of fairness, both to the trial court and to the opposing party." (Emphasis added; internal quotation marks omitted.)
Section 45a-186(a) addresses the requirements for standing in a probate appeal. It provides in relevant part: " [A]ny person aggrieved by any order, denial or decree of a Probate Court in any matter . . . may . . . appeal therefrom in Superior Court." " If the plaintiffs are not persons actually aggrieved by the decree [of the Probate Court], the Superior Court has no jurisdiction of the subject matter of the appeal." (Emphasis added.) Kerin v. Goldfarb, 160 Conn. 463, 467, 280 A.2d 143 (1971). " In order for an appellant to have standing to appeal from an order or decree of the Probate Court, the appellant must be aggrieved by the courts decision. General Statutes § 45a-186 . . . Aggrievement as a concept of standing is a practical and functional one designed to assure that only those with a genuine and legitimate interest can appeal an order of the Probate Court . . . The question of [aggrievement] does not involve an inquiry into the merits of the case ." (Emphasis in original.) Marchentine v. Brittany Farms Health Center, Inc., 84 Conn.App. 486, 490, 854 A.2d 40 (2004). " The plaintiff's appeal should clearly state the basis for his claim of aggrievement . . . and a mere conclusory claim that the plaintiff is aggrieved is insufficient." (Citation omitted.) Lenge v. Goldfarb, 169 Conn. 218, 221, 363 A.2d 110 (1975).
" In determining whether an appellant has a grievance . . . the question is whether there is a possibility, as distinguished from a certainty, that some legally protected interest which he has in the estate has been adversely affected ." (Emphasis added; internal quotation marks omitted.) In re Probate Appeal of Red Knot Acquisitions, LLC, 147 Conn.App. 39, 42, 80 A.3d 594 (2013). When raising this question, the court must engage in a two-prong analysis and consider: " (1) the nature of the appellant's interest, and (2) the adverse effect, if any, of the Probate Court's decision on that interest ." (Emphasis added; internal quotation marks omitted.) Buchholz's Appeal from Probate, 9 Conn.App. 413, 416, 519 A.2d 615 (1987). " This interest may be a direct pecuniary one, or it may consist of an injurious effect upon some legally protected right or status of the appellant." (Emphasis added; internal quotation marks omitted.) Flor v. Pohl, 95 Conn.App. 555, 559, 899 A.2d 46 (2006); see e.g., Molleur v. Perkins, 82 Conn.App. 468, 472 n.6, 844 A.2d 916, cert. denied 270 Conn. 912, 853 A.2d 527 (2004) (holding that, in motion for appeal of probate decree, representation that plaintiff was heir at law of deceased was sufficient to establish aggrievement for purposes of challenging probate decree admitting codicil); Luciano v. Choszczyk, 165 Conn. 24, 25-26, 327 A.2d 564 (1973) (holding that allegation that appellant was heir at law was sufficient to establish aggrievement for purposes of challenging probate decree admitting will into probate); cf. Doyle v. Reardon, 11 Conn.App. 297, 304, 527 A.2d 260 (1987) (holding that plaintiff did not have legally protected interest in decedent's estate solely by virtue of plaintiff's blood relation to testator as her grandson); Fitzhugh v. Fitzhugh, 156 Conn. 625, 626-27, 239 A.2d 513 (1968) (holding that plaintiff did not have legally protected interest by virtue of being incompetent parent's only son); but cf. Marchentine v. Brittany Farms Health Center, Inc., supra, 84 Conn.App. 494 -95 (holding that plaintiff's status as testator's only son in combination with fact that plaintiff lost position as his mother's power of attorney because of probate decree and evidence showing that plaintiff sought to retain relationship forged out of bond between parent and child, and was not motivated solely by financial concerns, were sufficient to establish legally protected interest in continuing relationship with plaintiff's mother and adverse effect on that interest).
In the present case, in alleging that she is the decedent's daughter and an heir at law, the plaintiff has identified viable legally protected interests and statuses that can serve as a basis for standing. The plaintiff's reasoning, however, misconstrues the requirements for standing as set out in § 45a-186 and appellate authority interpreting this statute. The plaintiff still must demonstrate how the Probate Court's decree from February 2012 had an adverse effect on her status and interest as an heir at law. In her memorandum in response to the defendant's motion for summary judgment, the plaintiff attacks the defendant's general mismanagement of the estate and general noncompliance with his fiduciary duties, which is not the subject of the probate decree on review in this court. The subject of the Probate Appeal under review is the approval of the final accounting of the decedent's estate and a denial of certain administrative claims.
The defendant also misconstrues the requirements for standing by applying the standards for aggrievement to specific requests for relief in the plaintiff's complaint. Aggrievement requires a showing of a legally protected interest and of an adverse effect from the probate decree on that legally protected interest; aggrievement does not inquire into whether the relief requested is appropriate. To undermine the plaintiff's standing, the defendant invokes the doctrine of induced or invited error. Research did not reveal any case law supporting the application of or authorizing the application of this doctrine to probate appeals.
First, the plaintiff has not demonstrated that the February 2012 decree has adversely affected her legal interest as the decedent's daughter. Specifically, the plaintiff has not alleged circumstances that, in addition to her representation that she is the decedent's daughter, suggest the Probate Court's approval of the estate's final accounting and denial of administrative claims had an injurious effect on her interest arising from her blood relation to the decedent such as maintaining a continuous, familial bond or upholding an obligation to ensure the decedent's welfare. Therefore, the plaintiff lacks standing as the decedent's daughter to appeal the February 2012 decree.
Second, because the subject of this appeal is not the admission of the decedent's will into probate, the plaintiff's allegation of being an heir at law alone does not establish aggrievement. Thus, the plaintiff must also demonstrate how the probate decree from which she specifically appeals--the February 2012 decree--adversely affects her status and interest as an heir at law. In her complaint, the plaintiff alleges that due to accounting deficiencies and the defendant's fraudulent conduct, the estate actually holds a negative balance. Although these allegations suggest an adverse effect on the plaintiff's interest in that she may not receive her bequeathment, they ultimately undermine the plaintiff's standing. If it is true that the estate's balance is negative and this court reverses the Probate Court decree to reflect this reality, the plaintiff would still not receive her bequeathment because the estate, according to the plaintiff, has nothing to distribute. Thus, reversing the February 2012 decree would likely result in the plaintiff receiving less than what she is entitled. See Kelly v. Estate of Coughlin, Superior Court, judicial district of Waterbury, Docket No. 087847 (March 14, 1991, Blue, J.) (dismissing plaintiffs' probate appeal for the following reasons: " [T]he interest that either the decedent's heirs at law or creditors have in the filing of the tax certificate here is simply unfathomable. The appellants' purported claim concerning this-that additional taxes should be paid to the state-is actually an argument against their interests (its incredible qualities aside). Payment of additional taxes would diminish the estate, and no heir at law or creditor, in that capacity, could possibly benefit from such a diminution."). Therefore, the plaintiff has not demonstrated that she is aggrieved as an heir at law, and thus, lacks standing to appeal the February 2012 decree approving the estate's final accounting.
In addition to approving the estate's final accounting, the Probate Court in its February 2012 decree also described three administrative claims before it: (1) expenses in excess of rent in St. Thomas, (2) car indemnification for estate purposes, and (3) loan(s) to the family casino. Because the plaintiff did not appear at the February 2012 hearing, these claims were denied. The plaintiff, however, does not explain the substance of these administrative claims and how their denial adversely affects her interest as an heir at law or particular pecuniary interest in the estate. Moreover, the plaintiff has not made allegations from which an inference of adverse effect on her interest can be made from the denial of these administrative claims. Likewise, the plaintiff lacks standing as an heir at law to appeal the February 2012 decree regarding the denial of the three administrative claims.
IV
STATUTE OF LIMITATIONS AND TOLLING
At short calendar, the court requested additional briefing on the issue of whether the doctrine of continuing course of conduct tolls the time in which to commence a probate appeal. Assuming that the defendant's characterization of the plaintiff's challenge to the October 2001 probate decree as an appeal is correct, the defendant argues that the plaintiff's appeal is time-barred under § § 45a-186 and 45a-187(a) of the General Statutes. The plaintiff responds that her claim is tolled by the doctrine of continuing course of conduct given that a fiduciary relationship existed between herself (beneficiary of the estate) and the defendant (executor of the estate) and that the defendant's alleged fraudulent acts were ongoing throughout the present time and throughout the administration of the estate. The plaintiff reasons that the defendant's fraudulent acts constituted a breach of his fiduciary duty to her and continued to cause her harm, which triggers the court's equitable authority to toll the time for her appeal.
The defendant counters that the doctrine of continuing course of conduct does not apply because of its limited application to causes of action in tort and malpractice. The defendant further argues that given the Superior Court sits as a court of limited jurisdiction when hearing a probate appeal, this court cannot exercise its equitable powers to toll the time for taking a probate appeal. Morever, the defendant contends that because the time limits to make appeals and tolling the time to do so are specifically set out in the General Statutes, those circumstances are the only ones upon which the time for making an appeal may be extended or altered.
" The right to appeal from a decree of the Probate Court is purely statutory . . . and the requirements fixed by statute for taking and prosecuting the appeal must be met . . . The failure to appeal timely from the decision or decree of the Probate Court warrants the dismissal of the appeal." (Citations omitted; internal quotation marks omitted.) Porto v. Sullivan, 119 Conn.App. 360, 365-66, 987 A.2d 1092 (2010). " [T]he court's authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power may be exercised in order to comply with the terms of the statute." (Internal quotation marks omitted.) Beizer v. Dept. of Labor, 56 Conn.App. 347, 362, 742 A.2d 821, cert. denied, 252 Conn. 937, 747 A.2d 1 (2000).
Section 45a-186(a) sets forth the time period in which to appeal from Probate Court. It provides in relevant part: " Any person aggrieved by any order, denial or decree of a Probate Court in any matter, unless otherwise specially provided by law, may, not . . . later than thirty days after mailing of an order, denial or decree for any other matter in a Probate Court, appeal therefrom to the Superior Court." (Emphasis added.) Section 45a-187(a) also provides in relevant part: " An appeal by persons of the age of majority 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 the time provided in section 45a-186, except as otherwise provided in this section . If such persons have no notice to be present and are not present, or have not been given notice of their right to request a hearing, such appeal shall be taken within twelve months . . ." (Emphasis added.). Section 45a-186c(b) additionally extends the time to appeal when an application for waiver of costs is filed. This subsection provides in relevant part: " The filing of the application for the waiver of [the costs of an appeal taken under § 45a-186] shall toll the time limits for the filing of an appeal until such time as a judgment on such application is rendered."
Research did not reveal any case law supporting the contention that the doctrine of continuing course of conduct is applicable to probate appeals or that it tolls the time in which to commence a probate appeal. Appellate authority makes clear, however, that the right to appeal a probate decree is purely statutory and therefore the statutory requirements to exercise that right must be followed or the appeal is dismissed. Morever, the statutory language is unambiguous that unless specially provided by law or by relevant statutes, the timing requirements for a probate appeal must be satisfied. See Falvey v. Zurolo, 130 Conn.App. 243, 249, 22 A.3d 682 (2011) (applying principles of statutory interpretation to General Statutes § 45a-650(h): " In seeking to determine that meaning . . . General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." [Internal quotation marks omitted.]).
In the present case, the plaintiff had thirty days from the date of the probate decree to file an appeal. An appeal from the October 2001 probate decree now in 2015 is clearly beyond the statute of limitations. Even under other relevant subsections of Title 45a of the General Statutes, the plaintiff's appeal is still well past the statute of limitations. The plaintiff alleges that she did not receive notice of the hearing to approve and admit the decedent's will into probate. If true, under § 45a-187, the plaintiff would have twelve months from the October 2001 decree to make an appeal. The plaintiff's appeal now, in 2015, is time-barred. In addition, § 45a-186c(a) is inapplicable to the present case because the plaintiff did not file an application for a waiver of costs. The plaintiff's challenge to the October 2001 probate decree, if the court deems it an appeal, is untimely and the doctrine of continuing course of conduct, which is not applicable to probate appeals, cannot toll the time limitations as set forth in the statutes. Therefore, the plaintiff's claims against the October 2001 decree, if deemed an appeal, is dismissed.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is denied because it is procedurally improper in a probate appeal. The plaintiff Ahlam lacks standing to appeal the February 2012 decree approving the estate's final accounting and thus her appeal from that decree is dismissed. The plaintiffs, ' Ahlam's and Adil's challenge to the October 2001 probate decree, if this court deems it as an appropriate appeal is untimely and is therefore dismissed.