Opinion
CV145005838
12-14-2015
Dr. Haiying Tao et al. v. Probate Court for the Northeast District #26
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
John D. Boland, S.J.
This is the third of five actions filed to date by Keith Curran, some of which include as a plaintiff his wife, Dr. Haiying Tao. He is the son of Eileen B. Curran. The suits all stem from conservatorship proceedings regarding the mother, and conducted in the Probate Court for the Northeast District (#26).
The suits, all filed in Windham Judicial District, bear the following captions and docket numbers: Keith Curran and Haiyong Tao v. Anna Zubkova, CV 13 5005794; Keith M. Curran and Haiyong Tao v. Court of Probate, Northeast Probate District (26), CV 14 5005817; Haiyong Tao and Keith M. Curran v. Anna Zubkova, CV 14 5005838; Keith Curran v. Anna Zubkova, CV 15 5006089; and Keith Curran v. Anna Zubkova, CV 15 5006090.
As originally filed on May 5, 2014, the suit named as defendants 1) the Probate Court; 2) Anna Zubkova, Eileen's voluntary conservatrix; 3) Paul Kaplan, Zubkova's attorney throughout the probate proceedings; and 4) Eileen Curran. The suit is the appeal from that court's decree issued April 7, 2014, which concluded with a decree that plaintiffs here had unduly influenced the ward to transfer to them a parcel of real estate in the town of Woodstock. The decree granted the conservatrix's application made pursuant to Conn. Gen. Stat. § 45a-98a ordering that title revert to her. Plaintiffs claim a total of fourteen errors on that court's part, including claims of statutory unconstitutionality, lack of subject matter jurisdiction in the probate court, various violations of plaintiffs' constitutional rights, rules violations, and other deprivations of due process or deviation from settled legal principles.
In September of this year, this court was assigned to hear a series of pending motions filed in suits number four and five, both of which were filed in 2015. In preparation for that hearing, the court reviewed the status of the earlier actions. That review revealed that in this case, plaintiffs had withdrawn the action against the probate court on November 17, 2014 (see docket entry #146). On March 17, 2015, the court (Calmar, J.) granted motions to strike the entire complaint as to defendants Kaplan and Zubkova, and plaintiffs have not repled as to either. The case is thus at a practical end as to those two defendants (see Practice Book Sec. 10-44). The sole remaining defendant, therefore, is Eileen Curran. While she has appeared in the case as a self-represented party, questions as to her competence led the court (Calmar, J.) to deny Keith's motion that she be defaulted for failure to plead.
Judge Calmar's September 10, 2015 memorandum of decision denying that motion notes that " the court is unable to conclude, given the history of this case that Eileen Curran is of the mental capacity to submit pleadings . . ." Keith Curran himself, in paragraph 3 of his complaint in the first suit, Keith Curran and Haiyong Tao v. Anna Zubkova, CV 13 5005794 stated: " Eileen Curran is a 68 year old woman [who] has progressively deteriorated in cognitive ability and is unable to comprehend complicated topics and court proceedings." This is a theme he has reiterated in later proceedings as well.
Since this suit was filed, however, events have occurred which raise a serious question as to why this action is still in process. In his complaint in suit number four, filed on June 26, 2015, Keith Curran asserts that he is " an attorney in fact for Eileen Curran with specific authority to prosecute on her behalf all legal claims and causes of action which she would be entitled to bring on her own behalf." He filed suit number five three days later and likewise identifies himself as acting pursuant to Eileen's power of attorney and on her behalf. Nothing filed since those dates has altered the manner in which he thus formally designated the present relationship between himself and Eileen.
i.e., Keith Curran v. Anna Zubkova, CV 15 5006089.
i.e., Keith Curran v. Anna Zubkova, CV 15 5006090.
These recitals of fact, made within pleadings filed in this forum and in cases intrinsically related to the instant action, have of necessity come to this court's attention. They constitute judicial admissions and require no additional evidence to be taken before the court make advert to them as established.
So at present, in this suit, Keith and his wife are suing Eileen, whose competence to defend is tenuous. Moreover, all their complaint alleges as to her is that the probate court lacked jurisdiction because she was not a Connecticut resident, and that there is doubt concerning her competence. The great bulk of the appeal challenges the actions of the individuals as to whom his complaint has been stricken, or the decisions made by the court, as to which the action has been withdrawn. At the same time, in the two 2015 actions, Keith (without his wife) is suing those individuals and others on Eileen's behalf, all in connection with the same subject matter. The clear inference one may draw from these circumstances is that in this trio of lawsuits Keith and Eileen have come to share a common interest in the outcome, and that Keith now stands as both protagonist and antagonist in this family saga. Given that in this action he seeks, inter alia, a declaration that this court's probate court system is unconstitutional, and that the probate court proceedings are rife with error, this alignment led this court to question whether there is an actual case or controversy pending before it, or, instead, just an effort on Keith's part to secure a judgment against the probate court under circumstances in which no capable defendant stands ready to oppose him.
This court resolved this issue on September 5, 2014, when it overruled Keith's objections to the probate court's exercise of its jurisdiction as to Eileen. Keith has appealed that decision; see AC 37506, which remains pending.
Accordingly, on the record on October 1, the court raised on its own motion whether this action is justiciable, specifically whether it is moot for lack of an actual case or controversy, or due to a current lack of adversity between the parties to the case. In doing so, the court invited Keith to file a memorandum of law outlining his position, and he has done so.
" Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 429-30, 829 A.2d 801 (2003).
I. Justiciability
In order for a court to have jurisdiction to resolve an action, it is fundamental that the matter be justiciable. That requirement inheres at the inception of the lawsuit, and must be met throughout the pendency of the case, while in the superior or any higher court; State v. Boyle, 287 Conn. 478, 949 A.2d 460 (2008). " When, during the pendency of [a case], events have occurred that preclude [a] . . . court from granting any practical relief through its disposition of the merits, a case has become moot." Burbank v. Board of Education, 299 Conn. 833, 839, 11 A.3d 658, (2011). Justiciability, which, is the power of the court to act, " requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . .., (3) that the matter in controversy [is] capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant . . . A case is considered moot if [the court] cannot grant the appellant any practical relief through its disposition of the merits; " Wendy V. v. Santiago, 319 Conn. 540, 125 A.3d 983 (2015). Those four requirements are conjunctive, and the repeated insistence upon their presence in recently reported decisions of both the Supreme and Appellate Courts places their importance beyond debate--see, e.g. In re Emma F., 315 Conn. 414, 107 A.3d 947 (2015); Carraway v. Commissioner of Correction, 317 Conn. 594, 119 A.3d 1153 (2015); Sorrentino v. Sorrentino, 160 Conn.App. 25, 123 A.3d 1287 (2015); Bombero v. Bombero, 160 Conn.App. 118, 125 A.3d 229 (2015); and Martocchio v. Savoir, 156 Conn.App. 224, 112 A.3d 211 (2015).
Further, " the 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). " [I]t is the burden of the party who seeks the 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).
A. What is " The Controversy" Here?
" The term 'controversy' is very broad and comprehensive, and for that reason is not easily susceptible of any precise general definition; " C.J.S., Actions, § 16.
Plaintiffs' May 21, 2014 amended complaint, which is now the operative complaint in this matter, runs to twenty pages in length, plus exhibits. At the time they filed it, the plaintiffs were self-represented, and the complaint lays out fourteen separate claims of wrongdoing on the part of the then defendants. Though not expressed as separate " counts, " as the usual format would dictate, this court reads them as such. " Counts" 9 and 10 alone relate to the role of Eileen Curran in the proceedings; the remaining claims relate to the probate court or to actions of the other, prior defendants no longer parties to this case. Those other " counts" seek this court's declaration that the probate court proceedings were unconstitutional, violated statute and rule, denied them due process, etc.
Claims nine and ten stem from the following allegations made by plaintiffs. At some time prior to the commencement of the probate proceedings, Eileen had executed a quit-claim deed conveying to plaintiffs all her interest in real estate located at 12 Lakeview Drive in the town of Woodstock. Later, after designating Anna Zubkova as her voluntary conservatrix, Eileen authorized her to initiate the probate case for the purpose of having title to that property restored to her, contending that the original conveyance was made under undue influence and voidable. The probate court held extensive, contested proceedings, ultimately issuing a decree dated April 7, 2014, concluding that undue influence had been exerted upon the grantor and declaring the deed therefore null and void. Crucially, in plaintiffs' telling of it, Eileen was in fact unduly influenced by her conservatrix and her attorney (Kaplan), as she was " suspected of having mental defect, " perhaps " dimensia" (sic). Assuming that all of the foregoing can be proven, plaintiffs include among a number of claims for relief these two remedial goals: " (2) [that this court] Vacate Order of The Probate Court, and that the Judgment(s), Finding(s), Decision(s) of said probate court and Judge Leah Schad be set aside; and (3) That title to property is rightly found in the names of Dr. Haiying Tao and Keith M. Curran."
As this court understands the present status of this case, the title to the real estate is the subject of the controversy. That is a private matter between the remaining parties, albeit one affected by the probate court's decree.
Plaintiffs see it differently. Their brief on justiciability--which the court must commend for the quality of its writing and the ingenuity of its argument--observes that this entire case is not a " civil action, " but instead a " probate appeal" under § 45a-186 of the General Statutes. As such, they maintain, it is a statutory action to which the justiciability formula set forth above is inapplicable. The only question, they maintain, citing Keller v. Beckenstein, 305 Conn. 523, 46 A.3d 102 (2012), is whether they are " aggrieved" by the probate court's decision. Asserting that they are indubitably aggrieved, they contend that not only have they been deprived of title to the real property (to that extent, framing the controversy in the same manner as the court sees it), but additionally that Keith Curran, particularly, has been " wrongfully accused" of unduly influencing his mother. Significantly, they propose that " impending filings" in this court " will give the Defendant Eileen Curran the opportunity to present her own basis for aggrievement by the Probate Court decree." One should not overlook the twelve " claims" in the complaint which challenge the doings, the authority, and even the statutory purpose of the probate court--all matters of public concern. In other words, Keith appears to have an agenda beyond restoration to the real estate title; this is the opportunity to achieve vindication as to his arguments against the probate court's jurisdiction and proceedings, and as to his grievances against the now absent defendants. Even for Eileen (formerly his adversary, now his principal), he posits that this is the opportunity to develop her own theories of recovery against those others.
To respond, the court appreciates Keller 's distinction, long recognized, between civil actions generally (to which the justiciability requirements are mandatory), and statutorily-created causes of action, which depend for their viability upon satisfaction of the conditions set by the legislature as well as upon the formulations pronounced by the judiciary. Keller involved a claim under § 45a-363, authorizing appeals to this court from a probate court's denial of a " claim" against a decedent, regardless of the ripeness of that claim for determination. Absent the statute's language, the case would have failed the justiciability inquiry, which includes, as a topic of inquiry apart from mootness, whether a claim is ripe. Per that statute, " '[c]laim' means all claims against a decedent (1) existing at the time of the decedent's death or (2) arising after the decedent's death, including, but not limited to, claims which are mature, unmatured, liquidated, unliquidated, contingent, founded in tort, or in the nature of exoneration, specific performance or replevin . . .; " (Emphasis added); 305 Conn. 523, 535, 46 A.3d 102, quoting General Statutes § 45a-353(d).
The instant case proceeds pursuant to a distinct statute, § 45a-186, which provides in relevant part: " [A]ny person aggrieved by any order, denial or decree of a Probate Court in any matter, unless otherwise specially provided by law, may . . . appeal therefrom to the Superior Court." Significantly, this statute does not contain language in any way resembling that which was the subject of the Keller decision, and which formed the basis of the result in that matter. A probate appeal may be dismissed, if moot; Southport Congregational Church-United Church of Christ v. Hadley, 152 Conn.App. 282, 98 A.3d 99 (2014); conventional concerns as to justiciability are not inapplicable.
B. Are Keith Curran and Eileen Curran " Adverse Parties" ?
Given the present principal/agent relationship between Eileen and Keith flowing from the power of attorney, it appears clear that his suing her relative to the subject matter of their contract is on shaky ground. An agent stands in a fiduciary relationship with his principal; Town & Country House & Homes Service, Inc., v. Evans, 150 Conn. 314, 189 A.2d 390 (1963), which informs us at 317 that " [t]he very relationship implies that the principal has reposed some trust or confidence in the agent and that the agent or employee is obligated to exercise the utmost good faith, loyalty and honesty toward his principal . . ." Thus it has been held that " [a]n agent employed to purchase for another, cannot purchase for himself, whether he be actually or constructively an agent . . . He is, in such case, a trustee for his employer; " Church v. Sterling, 16 Conn. 388 (1844); that " one undertaking to act as agent for another cannot, in the matter to which his agency relates, act for himself"; Disbrow v. Secor, 58 Conn. 35, 18 A. 981 (1889); and that however an agency relationship has arisen, " the law does not allow the defendant to violate [such relationship] to the damage of the plaintiff"; Kurtz v. Farrington, 104 Conn. 257, 132 A. 540 (1926). With respect to these obligations of agency, the law has not altered over the intervening century. Perhaps no more fundamental breach of such a relationship can be imagined than that an agent use the power of attorney to sue the principal, who may even lack the capacity to understand what is going on.
In the instant case, Eileen remains (the sole) adverse party, whereas in the two 2015 actions, Keith is acting for her as her agent pursuant to the power of attorney. The concern at this time is not whether, for her own sake, she can or does ratify his actions. Rather, it is whether the agency relationship is nothing more than a means of advancing Keith's interests on the strength of Eileen's proxy. In raising this issue on October 1, the court wondered, for instance, what would be the proper response if presented with a stipulation for judgment signed by these remaining parties. If such a stipulation should exceed the merits of the case, is the court thereupon a rubber stamp, or the " adverse party" which must oppose their objectives?
This question is no longer merely academic. As the preparation of this memorandum was underway, the court noted that on December 3 the parties filed an application for " writ of mandamus" seeking an order of the court (presumably, not from this jurist) compelling me to enter an order defaulting Eileen Curran for failure to plead. The application recites that I instructed the clerk not to act upon a second motion for default filed on November 9 by Keith and Dr. Tao, which I did, since I was then in the process of researching preliminary to ruling upon the instant motion to dismiss. Nevertheless, it's a novel premise that a defendant may join in a stipulation demanding that she be defaulted on the plaintiffs' motion, and that any judge is bound to respond affirmatively to such a demand.
The first motion for default for failure to plead (#183) was heard by Judge Calmar. After granting it, he vacated that order in a written memorandum of decision at docket entry #185, on September 10, which speaks for itself.
One aspect of this stipulation warrants comment. Within it, as well as at other points in his pleadings, Keith asserts that his mother is being advised with respect to these matters by an attorney, G.B., whose address is reported to be in Massachusetts. G.B. has never appeared before this jurist; no one of his name appears as a licensed attorney on the Judicial Branch website; and he has, of course, made no effort to appear on Eileen's behalf here. The court is unaware whether he is even a member of the Massachusetts bar. In any event, the court takes a dim view of someone not licensed to practice here yet rendering advice to an elderly woman on how she ought to conduct herself in proceedings in this state, and views the giving of such advice as the unauthorized practice of law.
Then, on December 14, plaintiff Tao filed a " motion for order" (#203). The order sought is a decree of this court " holding that the findings contained in the probate court decree appealed in this action are clearly erroneous; and vacating and reversing said decree." The motion goes on to say that " all other parties to this case assent to the filing of this motion, " and that " the sworn responses of Defendant Eileen Curran to Interrogatories duly served upon her by Plaintiff Keith Curran" support granting the order requested. It is a motion of this sort--seeking a decision by this court calling into question the propriety of the probate court's decision, when no one is here to defend that decision, that is the ultimate mischief inherent in the present status of the parties.
Relying, again, on Keller, plaintiffs counter that when a person aggrieved by a probate decision appeals in this court, lack of adversity is not an issue because § 45a-186 contains no requirement of adversity. That begs the question, as adversity is such a fundamental requisite that it is assumed, and not typically expressed in a statute creating a cause of action. What is of concern at the moment is that in the circumstances of the present parties adversity is a phantom or trompe l'oeil, and one which permits collusion between nominal opponents in pursuit of goals that go beyond their private interests. In Black v. Goodwin, Loomis & Britton, Inc., 239 Conn. 144, 163, 681 A.2d 293 (1996), the Court defined collusion as " [a]n agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law, " and described it as a species of fraud. That suit involved issues of coverage under a policy of insurance, but the definition remains of relevant to the present discussion.
Collusive suits are forbidden. One such suit, involving " an object forbidden by law, " was United States v. Johnson, 319 U.S. 302, 63 S.Ct. 1075, 87 L.Ed. 1413 (1943). The District Court had declared the Emergency Price Controls Act unconstitutional. The Supreme Court did not merely reverse; instead, it dismissed the action, upon uncontroverted indications that the nominal plaintiff had no genuine stake in the outcome of the case, and that no judgment should be allowed to stand where one of the parties had dominated the conduct of the suit. The situation patently exhibited " the absence of a genuine adversary issue between the parties, without which a court may not safely proceed to judgment, especially when it assumes the grave responsibility of passing upon the constitutional validity of legislative action"; 319 U.S. 302, 304, 63 S.Ct. 1075, 87 L.Ed. 1413. The Court held that the rule would apply even if only private rights were involved, because " honest and actual antagonistic assertion of rights [is] a safeguard essential to the integrity of the judicial process, and . . . [w]henever, in the course of litigation, such a defect in the proceedings is brought to the court's attention, it may set aside any adjudication thus procured and dismiss the cause without entering judgment on the merits[; ] it is the court's duty to do so where, as here, the public interest has been placed at hazard by the amenities of parties to a suit conducted under the domination of only one of them " (emphasis added). The public interest in the integrity of our legislated probate system is equal in gravity to the nation's concern over wartime price controls, with which Johnson was concerned.
Finding a precise analogue to the factual alliance of the parties Curran in this suit has entailed looking for the needle in the proverbial haystack, and the court concedes that it has located no case in which a party is proceeding against another while holding that party's power of attorney authorizing complete control of the legal proceedings. This circumstance is most unusual, perhaps sui generis. It is black-letter law, however, that " [a]n action will be precluded, as being fictitious or collusive, where its real purpose is for one party to control both sides of the lawsuit so as to bring about a predetermined result . . .; " C.J.S. Actions, § 71. One is hard put to imagine how one could have more control over both sides of a dispute than Keith possesses here. Eileen's power of attorney removes any barrier between his interests and hers, and forces the conclusion that the answer to whether any adversity exists between these parties is negative.
C. Can This Court Grant Any Practical Relief to Plaintiffs?
Justiciability's four-pronged test concludes with demand that a court be able to grant some practical relief to the parties before it. Private Healthcare Systems, Inc. v. Torres, 278 Conn. 291, 898 A.2d 768 (2006), illustrates the application of this test. Torres was a physician on the roster of plaintiff's healthcare system, but was removed for what plaintiff believed to be cause. Arbitration ensued, and litigation thereafter to vacate the award. While appeals taken from a trial court order vacating the award were in process, Torres decided to voluntarily resign from the roster and moved to dismiss the appeal for lack of subject matter jurisdiction. While plaintiff contended that certain collateral consequences warranted the denial of the motion to dismiss, the decision holds that Torres' resignation rendered the lawsuit academic and brought an end to any real contest between the parties.
Here, if the actual controversy is over title to the real estate, this court action is similarly academic. Eileen's execution of a quit-claim deed to plaintiffs is the simple and complete cure for that dilemma. Preparation and signing of the deed would take less time than did preparation of the mandamus motion described above. While it may be true that such a deed has not yet been tendered or accepted, the present alignment of the parties renders that a mere ministerial detail. " Equity regards as done what ought to be done, Natural Harmony, Inc. v. Normand, 211 Conn. 145, 147, 558 A.2d 231 (1989). The principle inherent in that maxim certainly applies to the instant case.
If plaintiffs regard the controversy as more far-reaching than the real estate issue, then the court is especially concerned, in light of Johnson, that it correctly discharge its duty to insure that the public interest is protected. Without an opposing party, this cannot happen.
II. Conclusion
In light of the foregoing discussion, the court concludes that the action before it is moot. The case is dismissed.