Opinion
No. CV 04 0072307
September 8, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS THE PLAINTIFF'S APPEAL FROM PROBATE
FACTS
Presently before the court is a motion to dismiss the appeal of a November 25, 2003 decree of the Probate Court District of Plainfield, finding that Kenneth Burlingame, Sr., abandoned his son, Kenneth Burlingame, Jr., and therefore was not entitled to any proceeds from his decedent son's estate. On March 5, 2004, the plaintiff, Louise Burlingame, the executrix of the estate of Kenneth Burlingame, Sr., filed the present appeal with a return date of March 16, 2004, pursuant to a decree allowing appeal from probate dated March 1, 2004. The defendant, Mary Abbe, the mother of Kenneth Burlingame, Jr., was served with notice of the appeal on March 3, 2004.
On April 19, 2004, the defendant filed a motion to dismiss the plaintiff's appeal on the following grounds: (1) the court lacks subject matter jurisdiction, (2) the court lacks personal jurisdiction, and (3) insufficiency of process. The defendant also filed a memorandum of law and several exhibits in support of her motion to dismiss. Pursuant to Practice Book § 10-31(b), the plaintiff filed a memorandum of law in opposition to the motion to dismiss together with the affidavit of her attorney, Stephen Burlingame. On May 5, 2004, the plaintiff filed the reasons for appeal.
"A motion to dismiss tests . . . whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 774, 826 A.2d 138 (2003). "The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; and (4) insufficiency of process;" Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31. "[I]n ruling on a motion to dismiss, the trial court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 262 Conn. 423, 432-33, 829 A.2d 801 (2003). "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 for the judicial district in which such court of probate is held . . ." General Statutes § 45a-186. The appeal "shall be taken within thirty days . . ." General Statutes § 45a-187. "An appeal from a Probate Court to the Superior Court is not an ordinary civil action." Kerin v. Stangle, 209 Conn. 260, 263, 550 A.2d 1069 (1988). Nevertheless, it "is considered a civil action for purposes of mesne process." Kucej v. Kucej, 34 Conn.App. 579, 583, 642 A.2d 81 (1994).
The undisputed procedural history provides the background necessary to understand the parties' arguments with regard to the defendant's motion to dismiss. After the issuance of the November 25, 2003 decree, the plaintiff filed the first of three motions to appeal with the Probate Court on December 18, 2003. The plaintiff maintains that the Probate Court "failed to return the decree to [her]" and therefore made it impossible to timely serve it to defendant Mary Abbe, Kenneth Burlingame, Jr.'s mother, before its return date. The plaintiff also asserts that on February 2, 2004, she filed a new motion to appeal. The Probate Court executed the decree approving the appeal as of February 12, 2004, which made it impossible for the plaintiff to properly serve the defendant at least twelve days before the return date of February 24, 2004, as required by the decree. Consequently, the plaintiff filed a new motion for an amended appeal setting forth a proper return date, which the Probate Court executed on March 1, 2004. In his affidavit, the plaintiff's counsel declares that after filing each of the motions he had regular contacts with the clerk of the Probate Court and requested prompt approval and return of the appeal for appropriate service.
While the affidavit of plaintiff's counsel, submitted in support of her opposition to the motion to dismiss, asserts that the motion was filed on December 16, 2003, the defendant's Exhibit 2, filed in support of her motion to dismiss, is a copy of a December 16 letter and motion for appeal from the plaintiff's counsel to the Probate Court, which is stamped as received on December 18, 2003.
The defendant is now arguing on two different bases that the court lacks jurisdiction to hear the appeal. First, the Probate Court approved the amended appeal on March 1, 2004 after the ninety-day period provided by General Statutes § 45a-189. Allegedly, the noncompliance with the probate appeals statute deprives this court of jurisdiction. Second, the plaintiff failed to file the reasons for appeal within ten days after filing the appeal, as required by Practice Book § 10-76.
In opposition, the plaintiff argues that her failure to obtain an amendment of the appeal within the time period prescribed by § 45a-189 was due to the Probate Court's delay in waiting until February 12, 2004, to execute the appeal; because the second motion was filed on February 2, the Probate Court could have promptly approved the appeal to allow proper service. The delay made the February 24 return date untimely and forced the plaintiff to move for an amendment of the appeal. As for the failure to file the reasons for appeal, the plaintiff maintains that the delay does not deprive the court of jurisdiction.
The first issue is whether the court lacks jurisdiction because the Probate Court's decree on March 1, 2004, allowing an appeal was executed more than ninety days from the date of the probate decree being appealed. "The right to appeal from a decree of the Probate Court is purely statutory and the rights fixed by statute for taking and prosecuting the appeal must be met." State v. Goggin, 208 Conn. 606, 615, 546 A.2d 250 (1988). "The Superior Court is without jurisdiction to entertain an appeal from probate unless the appeal complies with the conditions designated by statute as essential to the exercise of this power." Bergin v. Bergin, 3 Conn.App. 566, 568, 490 A.2d 543 (1985). "In 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. General Statutes § 45a-189. "Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective . . ." General Statutes § 52-72.
In Connecticut National Bank v. Cooper, Superior Court, judicial district of Danbury, Docket No. 311783 (May 26, 1993, Moraghan, J.), the court addressed the same issue presented by this case. The Connecticut National Bank ("CNB") moved for an appeal from a Probate Court decree. Having failed to include a return date in its motion, CNB requested an amendment to the appeal. The defendant moved to dismiss for lack of subject matter jurisdiction after the appeal had been amended in disregard of the ninety-day time limitation provided by § 45a-189. The court discussed whether a Probate Court may amend a decree defective in process without compliance with said statutory provision; in particular it analyzed "the applicability of Sec. 52-72 to an improper return date, or a failure to establish a return date in a probate appeal." Connecticut National Bank v. Cooper, supra. The court found "that Sec. 52-72 applies specifically to defects in the return date. As a result, since a probate appeal is considered a civil action for mesne process, and since Sec. 45a-189 applied generally to any defect in the form of a probate appeal, the defective process, the lack of a return date, could be corrected according to the specific provisions of Sec. 52-72, instead of the more general provisions of Sec. 45a-189." Id. The court concluded that the Probate Court's failure to comply with § 45a-189 in amending the appeal did not deprive the court of jurisdiction. The same considerations apply to the present case. The amendment of the appeal after the ninety-day period provided by § 45a-189 does not effect this court's jurisdiction; the Probate Court could in fact validly modify the return date under § 52-72.
Even if § 52-72 did not provide a valid basis for the Probate Court's amendment of the plaintiff's appeal, the court will not grant the motion to dismiss for such reason "[A]n aggrieved party who files a proper motion for appeal within the statutory time should not be deprived of his or her right of appeal merely because the probate judge does not perform his or her required duty promptly . . . A party's right of appeal may not be nullified by the power of the Probate Court by its mistake, omission or its failure to act properly or expeditiously." Molleur v. Perkins, 82 Conn.App. 468, 471, 844 A.2d 916 (2004) (reversing a judgment dismissing a probate appeal that was not filed within the statutory thirty-day limitation, when the delay was caused by the Probate Court's failure to act promptly). The plaintiff maintains that the failure to comply with § 45a-189 was due to the Probate Court's delay in executing the February 2, 2004 appeal. The plaintiff filed a timely motion for appeal with a correct return date and would not have needed to amend the appeal, but for the delay of the Probate Court in executing the previous amendment. Her right to appeal will not be taken forfeited because of the inaction of the Probate Court.
"A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts . . . A motion to dismiss raises the question of whether a jurisdiction flaw is apparent on the record or by way of supporting affidavits." Russell v. Yale University, 54 Conn.App. 573, 577, 737 A.2d 941 (1999) (citations omitted; internal quotation marks omitted). The supporting affidavit of plaintiff's counsel asserts that the Probate Court delayed the execution of the amended appeal until February 12, 2004. Because said assertion has not been contested, the court should consider it as a factual element in ruling on the motion to dismiss.
The holding of Molleur v. Perkins makes it irrelevant that if the plaintiff had filed the February 23 motion to amend the appeal immediately after the execution of the appeal on February 12, the Probate Court would have had the time to execute the amendment before the expiration of the ninety-day period on February 22. Both on December 18, 2003 and February 2, 2004, the plaintiff filed proper motions to appeal with a correct return date. Based on the uncontested facts presented to this court, it was the Probate Court's delay that, despite the requests for a prompt execution made by plaintiff's counsel, rendered the appeals defective in their return date.
As for the defendant's final contention that the plaintiff failed to file the reasons for appeal timely, Practice Book § 10-76 provides that "[u]nless otherwise ordered, in all appeals from probate the appellant shall file reasons of appeal . . . within ten days after the return day . . ." The plaintiff's failure to comply with the ten-day term does not affect this court's jurisdiction. See Fischer v. Estate of Michael Mansi, Superior Court, judicial district of New Haven, Docket No. CV 97 0404153 (January 6, 1998, Fracasse, J.) ( 21 Conn. L. Rptr. 289, 290); Rizzo v. Estate of Lucy Magnano, Superior Court, judicial district of Middletown, Docket No. 67079 (August 10, 1993, Higgins, J.) ( 9 Conn. L. Rptr. 545, 547).
This court has not considered the merits of the appeal itself, only whether the plaintiffs have acted appropriately to bring the appeal. The court finds that there is jurisdiction to hear the case. The defendant's motion to dismiss is therefore denied.
Foley, J.