Opinion
No. CV05 4004301-S
April 11, 2006
MEMORANDUM OF DECISION RE MOTION TO DISMISS # 106
I PROCEDURAL HISTORY
On June 29, 2005, the Probate Court issued a decree removing the plaintiff, Webster Bank, from its position as trustee. Twenty-nine days later, on July 28, 2005, the Probate Court issued a decree allowing the plaintiff to appeal its decision. The decree ordered that notice be given to the defendants at least twelve days before August 23, 2005, or no later than August 11, 2005.
The complaint, filed on September 14, 2005, lists five defendants including Ann Marie Bowen and her four children; (1) Kathleen Ann Bowen, date of birth, October 28, 1983; (2) Daniel Lucia Bowen, date of birth, July 31, 1985; (3) Alex David Bowen, date of birth, October 12, 1987, and; (4) Sean Michael Bowen, date of birth, July 4, 1992. On October 19, 2005, an appearance was entered only on behalf of Ann Marie Bowen. On October 26, 2005, Kathleen, Daniel, Alex, and Sean were defaulted for failure to appear. Accordingly, the memorandum of decision refers solely to Ann Marie Bowen as the defendant.
Pursuant to an affidavit submitted by State Marshal Barbieri, he executed service on the defendant, via abode service, on August 11, 2005. In his affidavit, Barbieri states: "My records indicate that, [after serving the defendant], my office staff mailed the original Writ Summons and accompanying papers to the Stamford, Connecticut offices of Robinson Cole LLP. Nonetheless, I have been informed by Robinson Cole LLP that such paperwork never arrived at their offices either in Stamford, Connecticut, or in Hartford, Connecticut." Attached to Barbieri's affidavit is a copy of the original writ of summons which provides a return date of August 23, 2005.
On August 28, 2005, the Probate Court found that the "insufficient return of the writ was due to unavoidable accident or default or neglect of the officer whom it was committed." Relying on General Statutes §§ 52-592 and 45a-189, the Probate Court amended its June 29th decree, again permitting the plaintiff to appeal. The amended decree ordered process to be served on the defendants at least twelve days before October 11, 2005, or no later than September 30, 2005, with return of service to the Superior Court on or before October 5, 2005.
According to a Connecticut treatise on probate litigation, "Connecticut's accidental failure of suit statute [§ 52-592] applies to and may save appeals from Probate Courts." R. Folsom, Probate Litigation in Connecticut 2d (2005), Chapter 7, § 7:4. This proposition, however, contradicts Metcalfe v. Sandford, 271 Conn. 531, 858 A.2d 757 (2004). In Metcalfe, the court concluded that § 52-592 does not apply to probate appeals. Id., 535. The defendant in this action does not, however, take issue with the validity of the Probate Court's reliance on this statute.
The second summons used in conjunction with the plaintiff's amended appeal is dated August 29, 2005. The return date therein is October 11, 2005. On September 1, 2005, Barbieri, via abode service, again served the defendant. On September 14, 2005, the plaintiff filed its amended appeal from probate in the Superior Court. The plaintiff filed its amended appeal from probate twenty-one days prior to October 5, 2005. On October 24, 2005, the plaintiff filed its reasons for appeal, nineteen days after the return of service date.
"Practice 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 . . .' Although the [Appellate and Supreme Court] have not ruled on the question of whether a party's failure to file reasons of appeal deprives the Superior Court of jurisdiction over a probate appeal, the judges of the Superior Court have consistently decided that it does not . . . The universal view of trial courts and the commentators to our Practice Book is that untimely filing of reasons of appeal is not jurisdictional, but rather is comparable to late-filed pleadings . . ." (Citation omitted; emphasis added; internal quotation marks omitted.) In re Logan S., Superior Court, judicial district of Tolland, Docket No. Redacted (August 18, 2005, Graziani, J.) ( 39 Conn. L. Rptr. 833, 835).
On November 10, 2005, the defendant filed a motion to dismiss the plaintiff's probate appeal and amended probate appeal for lack of subject matter and personal jurisdiction. On December 14, 2005, the plaintiff filed a memorandum in opposition arguing that it has complied with all the applicable statutes and has properly served the defendants.
II DISCUSSION A. TIMING OF PROBATE APPEAL
In her memorandum of law, the defendant first argues that the plaintiff failed to bring its probate appeal within the statutory time period set forth in General Statutes § 45a-187. The right of appeal from the Probate Court is statutory in nature. General Statutes § 45a-186 et seq. Moreover, an aggrieved person has an absolute right to appeal from probate. See In re Michaela Lee R., 253 Conn. 570, 606, 756 A.2d 214 (2000). "Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the Superior Court . . ." General Statutes § 45a-186(a). "An appeal under section 45a-186 by persons of the age of majority . . . shall be taken within thirty days . . ." Section 45a-187(a). "[T]he statute limiting the time for taking appeals from probate is a statute of limitations in the ordinary sense, and was intended primarily and principally to limit the right of the appellant and to protect the rights of the appellee, and not to limit directly and absolutely the power of the probate court to allow an appeal after the time has passed or to affect the jurisdiction of the Superior Court over an appeal, so allowed, if not objected to in the proper way and at a proper time." (Internal quotation marks omitted.) Phinney v. Rosgen, CT Page 6880 162 Conn. 36, 41, 291 A.2d 218 (1971). "The time limited for taking an appeal is computed from the date of the decree to the date of the order allowing the appeal . . . All that [an] appellant is required to do in perfecting his appeal is to present his motion for the appeal to the court stating his interest . . . and to give a bond with sufficient surety to prosecute the appeal to effect . . . The date the motion for appeal is filed with the Probate Court is the relevant date for judging the timeliness of the appeal." (Citations omitted; internal quotation marks omitted.) In re Estate of Bray, Superior Court, judicial district of Tolland, Docket No. CV 01 0075811 (July 24, 2001, Sferrazza, J.); see also, In re Logan S., Superior Court, judicial district of Tolland, Docket No. Redacted (August 18, 2005, Graziani, J.) ( 39 Conn. L. Rptr. 833, 834). Furthermore, a trial court has jurisdiction over a probate appeal once the appellant files a proper motion for appeal within the time allowed by statute. Molleur v. Perkins, 82 Conn.App. 468, 472, 844 A.2d 916, cert. denied, 270 Conn. 912, 853 A.2d 527 (2004); see also Silverstein's Appeal from Probate, 13 Conn.App. 45, 59, 534 A.2d 1223 (1987) ("(w]hen the appeal is properly taken and allowed, the jurisdiction of the Superior Court over the cause attaches").
In the present case the Probate Court issued its original decree on June 29, 2005. Twenty-nine days later, on July 28, 2005, the Probate Court issued a decree allowing the plaintiff to appeal. Accordingly, the plaintiff's appeal was taken in accordance within the thirty-day mandate of § 45a-187(a) and this court's jurisdiction attached when the Probate Court allowed the appeal.
B. AMENDED PROBATE APPEAL
The defendant also argues that the plaintiff's amended appeal is not proper pursuant to § 45a-189. With regard to the amended decree, the Connecticut Probate Practice Book instructs: "For the procedure before the Superior Court on appeals from probate, see Folsom, Connecticut Estates Practice, Probate Litigation, §§ 7.8-7.11." Connecticut Probate Practice Book (4th Ed. 2000), Part I, p. 1-44. In the latest edition of this treatise, the text provides: "The limitation of time for appeal is a limitation upon the parties, not upon the Probate Court. The Probate Court may therefore allow a late appeal, and if so the appeal is not void." R. Folsom, Probate Litigation in Connecticut 2d (2005), Chapter 7, § 7:4.
Section 45a-189 supplies the statutory basis for amending a probate appeal providing, "[i]n the event of any defect in the form of an appeal taken under the provisions of section 45a-186 by any aggrieved person, such person may obtain from the Court of Probate an amendment to the appeal correcting the defect, provided the order for amendment is granted not later than ninety days after the date of the order, denial or decree of the court of probate from which the appeal was originally taken." Section 45a-189. A "motion for permission to amend should be addressed to the Probate Court rather than to the Superior Court"; (emphasis added) R. Folsom G. Wilhelm, Probate Jurisdiction and Procedure in Connecticut 2d (2005), Chapter 3, § 3:8; and, " [g]reat latitude is allowed to the discretion of the courts in permitting such amendments." (Emphasis added.) R. Folsom, supra, Chapter 7, § 7:8. Nevertheless, even noncompliance with the ninety-day mandate in § 45a-189 may not necessarily create a jurisdictional defect. See Burlingame v. Abbe, Superior Court, judicial district of Windham, Docket No. CV 04 0072307 (September 8, 2004, Foley, J.); Connecticut National Bank v. Cooper, Superior Court, judicial district of Danbury, Docket No. 0311783 (May 26, 1993, Moraghan, J.).
Whether the term "defect in form" contained in § 45a-189 encompasses a defect in process, such as the one which occurred in this case, involves an interpretation of the statutory language. "There are no cases [however] which interpret the phrase `any defect in the form of an appeal' under the provisions of § 45a-189"; Connecticut National Bank v. Cooper, Superior Court, judicial district of Danbury, Docket No. 0311783 (May 26, 1993, Moraghan, J.); nor does the statute itself define this term See § 45a-189. Nevertheless, "[t]he mischief which the statute was designed to remedy is an important guide in ascertaining its meaning . . . In construing the legislative language, therefore, [a court is] bound as far as [it] may to give effect to the legislative intent and advance the remedy manifestly sought to be supplied. To this, end, adherence to the strict meaning of words and the precise letter of the language is not required." (Citation omitted; internal quotation marks omitted.) Mulcahy v. Mulcahy, 84 Conn. 659, 662, 81 A. 242 (1911).
"[I]n the absence of . . . statutory . . . guidance [the court] may appropriately look to the meaning of the word[s] as commonly expressed in the law and in dictionaries." (Internal quotation marks omitted.) Lucas v. Lucas, 88 Conn.App. 246, 256, 869 A.2d 239 (2005). Black's Law Dictionary defines "form" as both "[e]stablished behavior or procedure . . . [and] . . . [t]he customary method of drafting legal documents . . ." (Emphasis added.) Black's Law Dictionary (8th Ed. 2004). "Procedure is defined as `[a] specific method or course of action;' id.; but more importantly, [t]he term `process' . . . is equivalent to, or synonymous with, `procedure,' or `proceeding.'" Id. Thus, because form can be defined as a procedure, and procedure is synonymous with process, arguably the term "defect in form" contemplates a defect in process, thereby subjecting the defect in this case to an amendment pursuant to § 45a-189.
In the present case, fifty-eight days after issuing its original decree, and twenty-nine days after issuing its decree allowing the plaintiff's appeal, the Probate Court, relying in part on § 45a-189, amended its second decree again permitting the plaintiff's appeal. This court finds that the Probate Court issued a valid amended decree pursuant to § 45a-189, and even if it had not, there is no jurisdictional defect because this court's jurisdiction over the appeal had already attached when the original appeal was taken. Silverstein's Appeal from Probate, supra, 13 Conn.App. 59.
C. PROBATE APPEAL RETURN DATE
Regarding the defendant's third argument, that the return date on the amended appeal is deficient, General Statutes § 52-48(a) provides in relevant part: "Process in civil actions . . . brought to the Superior Court may be made returnable on any Tuesday in any month." Section 52-48(b) provides: "All process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held." (Emphasis added.) "The date of the process, of course, refers to the date of the writ of summons or attachment which must be accompanied by the complaint. General Statutes §§ 52-45a and 52-45b." (Internal quotation marks omitted.) Haylett v. Commission on Human Rights Opportunities, 207 Conn. 547, 554-55, 541 A.2d 494 (1988); see also Botte v. Estate of Botte, Superior Court, judicial district of New Haven, Docket No. CV 05 4006271 (August 12, 2005, Lopez, J.) ( 39 Conn. L. Rptr. 774, 775) (the date of process is date of writ of summons).
In this case, the court finds that the plaintiff's second summons attached to the amended motion for appeal from probate controls; cf. General Statutes § 52-72 (amended process has same effect as if originally proper); therefore the date of process contained therein comports with the mandates of § 52-48. The date of process on the second summons is August 29, 2005, and the return date listed therein, October 11, 2005, is within the two-month deadline.
D. PERSONAL JURISDICTION OVER DEFAULTED DEFENDANTS
The defendant's fourth argument, that the court lacks personal jurisdiction over the defaulted defendants, does not address this court's personal jurisdiction over her. Rather, the argument contests this court's personal jurisdiction over the four defendants who have already been defaulted. Once defaulted, however, defendants are "barred from filing any motions except an answer pursuant to Practice Book § 17-32 or a motion to open the default pursuant to Practice Book § 17-42." Dauti v. Stop Shop Supermarket Co., 90 Conn.App. 626, 638, 879 A.2d 507, cert. denied, 276 Conn. 902, 884 A.2d 1025 (2005). Accordingly, the argument is improperly before this court.
III CONCLUSION
The motion to dismiss is denied for the reasons stated.
So ordered.