Opinion
No. TTD CV05-4002560-S
September 15, 2008
MEMORANDUM OF DECISION FOLLOWING REARGUMENT
The court rendered judgment in this case on June 24, 2008. Subsequently, it granted plaintiff's Motion for Reargument to permit consideration of the points raised in his Motion for Reargument, and in his Reply Brief dated June 19, 2008. The matter was reargued on August 27, 2008. Following reargument, the court concludes that no change in the decision is merited. Accordingly, it reissues its decision.
No change is merited because, with one exception of no significance to the disposition, there are no new issues or arguments presented in the Motion for Reargument or Reply Brief not already considered, and the court is not persuaded that the final result should change. Accordingly, the decision is re-issued without change as follows:
The only arguably new point was contained in plaintiff's Reply Brief. In that Brief, he argued that he did not pay his $50 fee with his Motion to Appeal to the probate court on or before the October 12, 2004 deadline because the letter from the probate court telling him it was required was not delivered until 4 or 5 p.m. on that date, after he believed the court was closed. At trial, he testified that he did not see the decision until late in the day on October 12, and due to the time, his preoccupation with other litigation that he was working on, and his knowledge that the Probate Court usually closed at 4 p.m., he did not attempt to file anything on October 12. Defendant complains that this is a late change in testimony. Plaintiff argues that there is no change. The court agrees with plaintiff. The information is essentially the same. Plaintiff claims he had no time to act. However, the point does not excuse the late payment. As this decision finds, the Probate Practice Book rules require payment with the Motion to Appeal, and the deadline to act starts running from the time of issuance of the decision he seeks to appeal. The time he obtained a decision from the Probate Court informing him that his Motion was denied for failure to pay the fee may explain plaintiff's failure to try again earlier, but it does not extend the original deadline or otherwise excuse the defect.
In this case, the plaintiff, Morris Silverstein, proceeding pro se, filed a Petition for Writ of Mandamus seeking to compel the defendant, Probate Court Judge Elaine Camposeo, to allow his appeal from a 2004 Probate Court decision. The Probate Court decision that plaintiff seeks to appeal is a September 10, 2004 order and decree approving an interim accounting by the Administrator, d.b.n., Richard Laschever. The defendant denied plaintiff's Motion to Appeal, and this action ensued. Following a bench trial, the court finds for the defendant and, therefore, renders judgment for the defendant and against the plaintiff accordingly.
I
The standards applicable to the relief sought by the plaintiff are well settled. "Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes . . . It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy." (Internal quotation marks omitted.) Miles v. Foley, 253 Conn. 381, 391, 752 A.2d 503 (2000); Cammarota v. Planning and Zoning Commission, 97 Conn.App. 783, 789, 906 A.2d 741, cert. denied, 280 Conn. 941, 912 A.2d 475 (2006). The purpose of mandamus is to compel the performance of a ministerial act by a public officer when the petitioner has a clear legal right to the performance of the act. R. Bollier and S. Busby, 2 Stephenson's Connecticut Civil Procedure (Third Ed., 2002) § 224(a) citing Ballas v. Woodin, 155 Conn. 283, 284, 231 A.2d 273 (1967).
Since early times, the Petition for Writ of Mandamus has been accepted as the appropriate vehicle for challenging a Probate Court's refusal to allow an appeal. See Williams v. Cleaveland, 76 Conn. 426, 430, 56 A. 426 (1904); Orcutt's Appeal from Probate, 61 Conn. 378, 382, 24 A. 276 (1892).
II
The bench trial in this case was conducted on March 17 and 18, 2008. At trial, the court received in evidence several exhibits, including a copy of the order and decree of the Probate Court dated September 10, 2004, concerning the interim accounting that is at the center of this dispute; copies of documents filed by plaintiff in the Probate Court on October 4, 2004 seeking to appeal; a copy of the Probate Court's order dated October 6, 2004, with cover letter, denying the appeal; copies of documents filed by plaintiff in the Probate Court on October 13, 2004, in response; a copy of the Probate Court's Order dated October 21, 2004, denying the October 13, 2004 filings as late; copies of the General Statutes; a copy of plaintiff's complaint date May 31, 2005; copies of excerpts from the Connecticut Probate Practice Book; a copy of defendant's Motion to Quash Writ of Mandamus dated July 21, 2005, with Affidavit attached; a copy of defendant's Answer, Special Defenses, Counter-Claim and Return dated July 6, 2006; a copy of defendant's Motion for Summary Judgment dated July 28, 2006, with Affidavit attached; a copy of the Decedent's Estate Administration Account that contained the interim accounting that is the subject of the September 10, 2004, order and decree; and the court also considered plaintiff's Memorandum for Judge Scholl dated August 9, 2005, with attachments. Additionally, the court heard testimony from the plaintiff, from the defendant, and from Richard Laschever, the Administrator d.b.n., in this matter. After trial, the parties filed briefs in support of their various positions.
The court finds as follows: On September 9, 2004, a hearing was held at the Probate Court, District of Andover, on a petition by Richard Laschever, the Administrator d.b.n. of the Estate of Esther S. Silverstein, for approval of attorneys fees, reimbursements owed to the estate and heirs, and other expenses, in an interim accounting. Present were the defendant, Probate Court Judge Elaine N. Camposeo, presiding; Laschever; Laschever's attorney, Attorney G. Barry Goodberg (now deceased); and the plaintiff, Morris Silverstein, decedent's son and an heir to the estate.
During the hearing, Judge Camposeo went over the items with the Administrator d.b.n., line by line, marking changes or clarifications on the document. The Administrator d.b.n. initialed all changes as accepted. Judge Camposeo then announced, orally and in the presence of all in attendance, that the petition was approved. Knowing plaintiff's propensity to appeal, she then told the plaintiff, "You can do what you have to do." Laschever corroborated that he heard her decision and the statement.
According to the defendant, the matter of the Estate of Esther S. Silverstein has the dubious distinction of being the longest running probate court dispute in the State due to plaintiff's numerous appeals. The decedent died on February 28, 1969. The estate is still open because the plaintiff has appealed so many decisions over the past 39 years. Plaintiff's pro se lawsuits concerning the estate, including the instant case, are still pending.
The hearing was a contentious one, all agree. According to the defendant and Laschever, the plaintiff was irritated, was raising his voice, and he continuously interrupted the proceedings. The defendant testified that she had to raise her hand numerous times to get plaintiff's attention so that she could finish explaining things to him. On the other hand, plaintiff testified that he felt he was being treated in a demeaning way, and that the defendant lectured and scolded him. He described the Probate Court as a former classroom. He felt the defendant would not listen to him. He told the defendant that he felt he was not getting anywhere and said he would go to the Superior Court to get a proper hearing.
Plaintiff denies that the defendant announced any decision on September 9, 2004, or told him that he could next do what he had to do. This is in contrast to the testimony of the defendant and Laschever, who testified that she did so speak. The defendant also testified that the Probate Court is located in an old library, not a classroom, and that during the proceedings, the plaintiff was seated in the first row of chairs opposite her during the hearing, about 15 feet away. Plaintiff admits that he is slightly hard of hearing — partially hearing-impaired. The more credible evidence is that the defendant announced her decision orally, but that the plaintiff may not have heard it due to his inattention.
The court reduced its order to writing in an order and decree that the defendant signed on September 10, 2004. Plaintiff alleges that he never received a copy of that order from the Probate Court by mail at that time, and the defendant does not dispute that claim. It is not the practice of the Andover Probate Court to send written notice of its orders to opposing parties when the parties are present and orders are announced orally in their presence. The court finds that the Probate Court did not mail a copy of the written decision to the plaintiff at the time it was signed on September 10, 2004. However, the Administrator d.b.n. did obtain a copy of the written order and decree and showed it to the plaintiff on September 15, 2004, when the Administrator d.b.n. introduced it as an exhibit during a deposition in other litigation involving the plaintiff. Regardless, the court finds that by September 15, 2004, the plaintiff knew, or should have known, that the Probate Court decision had been made, and that his time limit within which to appeal was running out.
On October 4, 2004, plaintiff filed papers in the Andover Probate Court. Instead of filing a Motion for Appeal from Probate with a filing fee as ordinarily required, he filed a Motion to Amend Appeal, requesting to amend an appeal he already had pending concerning the Estate, and he requested a waiver of the filing fee. Alternatively, he also filed a Motion for Appeal from Probate, without a fee, in case his request to amend was rejected. Plaintiff's Exhibit 2. The defendant denied plaintiff's submissions by written order dated October 6, 2004, with the indication "Denied." Her decision was mailed to the plaintiff with a cover letter from the Clerk of the Court, postmarked October 8, 2004, stating, inter alia, "Your Motion for Appeal from Probate will not be admitted until all copies and fees are paid." Plaintiff retrieved that letter and decision from his mailbox on Tuesday October 12, 2004. Plaintiff testified that he did not see the decision until late in the day, and due to the time, his preoccupation with other litigation that he was working on, and his knowledge that the Probate Court usually closed at 4 p.m., he did not attempt to file anything on October 12. He did go to the Probate Court the next day, October 13, 2004, and filed another Motion to Appeal from Probate, bearing the same October 4, 2004 date as his earlier Motion, and this time he included a check in the amount of $50 for the filing fee and included copies as required by the Probate Court. That effort, however, was also denied — this time because it was filed too late. The Probate Court, in a decision, dated October 21, 2004, ruled, "Pursuant to Connecticut Statute 45a-187, an appeal from probate must be taken within 30 days of the date of the probate court decree. This appeal was not timely filed within the thirty day period and is therefore denied." Defendant's Exhibit F.
The Columbus Day holiday was celebrated on Monday, October 11, in 2004. The Probate Court was closed on October 11, 2004, due to the holiday.
The defendant testified that she could have allowed that second appeal effort, even though it was late, in her discretion, but declined to allow a late appeal in this instance, because (1) the case has been going on for 39 years while most Probate Court cases conclude within one year; (2) defendant appears to not want the case to ever close for some unknown reason; (3) she is not required to allow a late appeal; (4) she is not permitted to waive the filing fee; (5) the long delay in this case was frustrating the purpose of the Probate Court system to provide efficient, economical service and prompt decisions on estates to citizens; (6) the allowance of more appeals, causing more delay, in this case was a particular disservice to this estate and the other heirs and parties involved in this case; (7) allowing a late appeal for plaintiff would be a disservice to other litigants in other matters, as it would be inconsistent with the defendant's ordinary practice to deny late appeals, and (8) her decision to not allow a late appeal in this instance was not arbitrary nor motivated by personal animus as evidenced by the fact that she had granted Motions to Appeal by the defendant before in this same matter, and she granted Motions to Appeal by the defendant filed after in this same matter, provided they were timely and properly filed.
Plaintiff also filed a Motion to Appeal the October 21, 2004 denial, but that Motion was denied by decision dated November 19, 2004. Plaintiff abandoned further efforts to appeal the Probate Court's denials, and, instead, brought the instant Petition for Writ of Mandamus.
III
Plaintiff claims that "(1) his appeal was timely filed; (2) all other requirements have been met, thereby making his appeal automatic; (3) all that is left is the ministerial task of issuing a decree allowing the appeal; and (4) since an appeal cannot be taken from the denial of an appeal, mandamus is the proper remedy." Plaintiff's Brief, p. 2. The key issue is whether plaintiff's effort to appeal was timely.
The time for taking a probate appeal is normally limited to 30 days. General Statutes § 45a-187. This time limit begins to run against "persons of the age of majority who are present," or who received legal notice of the decree in question. General Statutes § 45a-187; Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 564, 192 A.2d 44 (1963); R. Folsom, Probate Litigation in Conn. (2nd Ed., 2006) § 7:5. The time for taking an appeal is computed from the date the order is made by the Probate Court. Id. Jakaboski v. Jakaboski, 28 Conn.Sup. 48, 50, CT Page 14971 248 A.2d 786 (1968). Therefore, if a decision is orally announced in Probate Court, with respect to the adult parties present, the 30 days begins to run that day. Likewise, in appellate practice generally, if a decision is announce orally in open court, the time to appeal, for those present, begins to run on that day. See Practice Book Sec. 63-1(b).
An appeal is taken to the Superior Court for the judicial district in which the Probate Court is located. The statute simply provides that any person aggrieved by any order, denial or decree of a Probate Court may "appeal therefrom to the superior court . . . [giving] security for costs . . . or recognizance with surety . . . or a bond . . ." General Statutes § 45a-186. In practice, the appeal is by motion to the Probate Court followed by a decree of that court allowing the appeal and specifying the notice to be given. See, General Statutes §§ 44a-191, 45a-192; Probate Litigation in Conn., § 7:5. Thus, the filing of a Motion for Appeal from Probate in the Probate Court is a mandatory prerequisite. Heiser v. Mornan Guaranty Trust Co., supra; Fuller v. Marvin, 107 Conn. 354, 357, 140 A. 731 (1928); Probate Litigation in Conn., § 7:5. An official form appears in Conn. Practice Book, Form 1004.7. The Probate Court acts on the Motion, making "such order of notice to persons interested as it deems reasonable. When the notice has been given by the appellant and proved to the court to which the appeal is taken, the court may hear the appeal without further notice." General Statutes § 45a-192. Delays in deciding a Motion to Appeal filed within the 30-day deadline will not prejudice the appellant. Molleur v. Perkins, 82 Conn.App. 468, 844 A.2d 916 (2004), cert. denied, 270 Conn. 912, 853 A.2d 527 (2004). However, the protection is only afforded to an aggrieved party who files a "proper motion for appeal within the statutory time." Molleur v. Perkins, supra, 82 Conn.App. 471. "[T]he right of appeal under General Statutes § 45a-186 is limited by certain conditions, including the filing of a Motion to Appeal within the time limited by appeal." Conn. Probate Practice Book (4th Ed. Rev. 2000) Pt. I, Ch. V, Sec. IV, p. I-42 (emphasis added) citing VanBuskirk v. Knierim, 169 Conn. 382, 386, 362 A.2d 133 (1975).
A Probate Court must allow any appeal if the requirements and requisites are met. Fuller v. Marvin, supra, 107 Conn. 356; Jakaboski v. Jakaboski, supra, 28 Conn.Sup. 50-51. "Where all requirements for appeal are met, the allowance is a ministerial act, and the court of probate is bound to grant the motion [to appeal]. Should the court neglect or refuse to do so, mandamus will lie to compel the court to allow the appeal." Conn. Probate Practice Book, supra, Pt. I Ch. V, Sec. V citing VanBuskirk v. Knierim, supra. Where, however, the Motion to Appeal is filed after the expiration of the applicable time period, whether to allow such appeal lies in the discretion of the Probate Court. See VanBuskirk v. Knierim, supra, 169 Conn. 387; Williams v. Cleaveland, 76 Conn. 426, 56 A. 850 (1904); Appeal of Lancaster, 47 Conn. 248 (1879); Conn. Probate Practice Book, Id. If the Probate Court refuses to allow the late appeal, the appeal is voidable and cannot be cured by mandamus. See VanBuskirk v. Knierim, supra, 169 Conn. 388; Fuller v. Marvin, supra, 107 Conn. 357; Appeal of Orcutt, 61 Conn. 378, 383, 24 A. 276 (1892).
In the instant case, plaintiff's time to appeal commenced running on September 9, 2004, when the court announced its decision in his presence. If he did not hear the decision, it was due to his own inattention, and not the fault of the court. His last day within which to appeal, thus, was October 9, 2004. Since that day was a Saturday, when the Probate Court was closed, and since the next date when the Probate Court was open was not until October 12 due to the weekend and holiday closing, plaintiff had until October 12 within which to file his Motion to Appeal. See Janazzo v. Estate of Janazzo, Superior Court, judicial district of New Britain, Docket No. CV 05-400396 (September 30, 2005, Robinson, J.). Plaintiff filed a Motion to Appeal on October 4, 2004, but it did not include the filing fee. A filing fee of $50 is required to be paid to the Probate Court at the time of the filing of the Motion for Appeal. Conn. Probate Practice Book, Pt. I, Ch. V, Sec. IV at p. I-42. The Probate Practice Book rule is mandatory. General Statutes § 45a-78. The right to appeal from the decision of a probate court is statutorily conferred. Baskin's Appeal from Probate, 194 Conn. 635, 637, 484 A.2d 934 (1984). In that type of case, the paying of the filing fee at the time of appeal is mandatory. Hefti v. Commission on Human Rights and Opportunities, 61 Conn.App. 270, 763 A.2d 688 (2001). Plaintiff did not tender his fee at the time he filed his Motion to Appeal in this matter, therefore, the defendant was correct in denying the Motion to Appeal. Accord, Dinan v. Marchand, Superior Court, judicial district of Fairfield, Docket No. CV 04-0410481 (September 3, 2004, Dewey, J.).
Even if one starts counting from September 10, 2004, the date when the court issued a written decision, the deadline to appeal would remain the same, and the outcome of this case would remain the same, due to the weekend and holiday time rule discussed infra.
Plaintiff also filed a Motion to Amend Appeal seeking to amend an existing appeal, but that, too, was properly denied. Each separate decision must be appealed separately. General Statutes § 45a-186. Amendments are only allowed for defects in form under certain circumstances. General Statutes § 45a-189. Plaintiff did not seek to amend a form. He sought to appeal a substantive decision. That required a new Motion to Appeal.
In plaintiff's second effort, filed on October 13, 2004, he tendered the filing fee, but by then it was too late. As noted above, the defendant could have allowed a late appeal, but that was a matter for her judgment within her discretion. She chose not to allow the late appeal. Mandamus is available to compel mandatory, ministerial duties; not discretionary judgments. Plaintiff did not tender his fee on time, the defendant was not required to grant his Motion to Appeal, and plaintiff has no right to the issuance of a Writ of Mandamus in this case requiring her to allow his appeal.
IV
For all of the foregoing reasons, the court finds in favor of the defendant, and renders judgment for the defendant and against the plaintiff accordingly.