Opinion
No. HHB CV 06 4009652 S
June 29, 2006
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#102)
By motion to dismiss filed on April 10, 2006, the defendant moves this court to dismiss the plaintiff's complaint for lack of subject matter jurisdiction. The court heard the parties' oral arguments at short calendar on May 22, 2006. For the reasons stated below, the court denies the motion to dismiss.
BACKGROUND
On February 10, 2006, the plaintiff, Commercial Music Distributors, Inc., filed a three-count complaint against the defendant, Carl J. Sokolowski, as the temporary administrator of the estate of Catherine D. Sanzo (the decedent). The complaint alleges that, prior to her death, the decedent held funds for the plaintiff in a checking account under the name "Catherine D. Sanzo d/b/a Sanzo Realty" and that the defendant, as temporary administrator of the decedent's estate, is wrongfully holding such funds, which are not part of the decedent's estate, to the plaintiff's detriment.
On April 10, 2006, the defendant filed a motion to dismiss, accompanied by a memorandum of law. The defendant maintains that under the precedent established by Rich v. Dixon, 153 Conn. 52, 212 A.2d 417 (1965), the court lacks subject matter jurisdiction to hear the pending matter. He asserts that the plaintiff must await the appointment of a permanent fiduciary.
On May 4, 2006, the plaintiff filed an objection to the defendant's motion and a memorandum of law, arguing that the court has jurisdiction to entertain a suit against a temporary administrator where such administrator has held property that does not belong to the decedent's estate. The plaintiff contends that there is no Connecticut authority directly on point and that neighboring jurisdictions have found that a suit may be entertained against a temporary administrator where the subject property is allegedly not part of the decedent's estate. Accordingly, the plaintiff requests that the court deny the motion to dismiss.
STANDARD OF REVIEW
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record." Practice Book § 10-31. "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . [A] 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.) Filippi v. Sullivan, supra, 273 Conn. 8.
"Subject 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 . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citations omitted; internal quotations marks omitted.) Amodio v. Amodio, 247 Conn. 724, 727-28, 724 A.2d 1084 (1999).
DISCUSSION CT Page 12253
General Statutes § 45a-317 sets forth the powers and duties of a temporary administrator of an estate. Section 45a-317 provides in relevant part: "(a) The temporary administrator or officer appointed pursuant to the provisions of section 45a-316 shall take immediate possession of all the real and personal property of the deceased, collect the rents, debts and incomes thereof and do any additional acts necessary for the preservation of the estate that the court authorizes." (Emphasis added.)"A temporary administrator . . . is only authorized by the statute to take possession to hold and preserve the estate." (Internal quotation marks omitted.) Rich v. Dixon, supra, 153 Conn. 58-59. "The temporary appointee is given but limited powers, all consistent with a temporary and emergency authority to protect and preserve the assets of the estate, but not extending beyond that . . . [T]here is no statutory authority for the temporary appointee to receive or pay claims or perform most of the multitudinous obligations of a general administrator of an estate. His only function is to hold and preserve the assets of the estate in either of the two circumstances set out in the statute and then [u]pon the appointment and qualification of the administrator, exhibit to the court an account of his trust and deliver to the . . . executor or administrator with the will annexed all of the estate of . . . [the] deceased remaining in his hands." (Internal quotation marks omitted.) Id., 59.
After reviewing Connecticut case law, the court finds that there is neither appellate nor Superior Court authority that directly addresses the issue raised in the present case. The defendant relies exclusively on Rich v. Dixon, supra, 153 Conn. 52, to support his contention that the court lacks subject matter jurisdiction. However, for the reasons set forth below, the court finds that the present matter is distinguishable from the issue raised in Rich.
In Rich, the plaintiff, while riding as a passenger in the decedent's vehicle, sustained injuries resulting from a car accident that killed the decedent. After the decedent's death, the plaintiff instituted an action against the temporary administrator of the decedent's estate, seeking to recover damages for the injuries sustained during the accident. Our Supreme Court was called upon to determine "whether [the] plaintiff may bind the estate of the decedent by notice of a claim to, and suit against, a temporary administratrix of the tort-feasor's estate . . ." Rich v. Dixon, supra, 153 Conn. 56-57.
Our Supreme Court found that a temporary administrator "is not the representative of the estate against whom an action may be brought to adjudicate a claim which existed against the decedent at the time of his death or to whom, when such claim is founded in tort, notice must be given prior to suit to comply with the provisions of the 1959 amendment to [General Statutes] § 45-210." Rich v. Dixon, 72, supra, 153 Conn. 61. The court went on to note that its "conclusion [was] in accord with the weight of authority that temporary administrators are not general representatives of the estate but emergency officers with but limited custodial duties and authority to care for and preserve the estate until an executor or general administrator is ascertained or appointed as its proper legal representative." Id. (Citing decisional law from other states.)
General Statutes § 45-210 is now General Statutes § 45a-402 and provides in relevant part: "(a) A creditor of any deceased person whose estate is in process of settlement as a solvent estate shall not commence a suit against a fiduciary of the estate within the period allowed by the court for the presentation of claims against the estate, unless written notice of a total or partial disallowance of his claim has been given by the fiduciary of the estate . . . (d) This section shall not apply to any claim founded in tort, provided written notice thereof shall be given to the fiduciary." The 1959 amendment that Rich referred to specified that the section is inapplicable to tort actions where notice is given to the "executor or administrator." (Internal quotation marks omitted.) Rich v. Dixon, supra, 153 Conn. 60. "Fiduciary" was later substituted for this language.
Though Rich provides a relevant discussion of the general powers and duties of a temporary administrator, it does not address the issue of whether a suit may be brought where the plaintiff maintains that the subject property is not an asset of the estate. The crux of the plaintiff's argument in the present case is that, while the defendant clearly has a duty to care for and preserve the estate, as recognized in Rich, the funds in the checking account are not part of the estate and therefore, the defendant has no right to possess and hold such funds.
Because there is no Connecticut authority that addresses the issue in this case, the court, in accordance with Connecticut Supreme court decisions on other subjects, looks to neighboring jurisdictions for decisional law bearing on the issue. Where there is no Connecticut authority directly on point, the court may look to the case law of Massachusetts for guidance. See Baker v. Baningoso, 134 Conn. 382, 384-85, 58 A.2d 5 (1948) (citing Massachusetts case law interpreting analogous statute where no "Connecticut case has been cited or found which passes on [the] precise question" raised); see also Weidenbacher v. Duclos, 234 Conn. 51, 68, 661 A.2d 988 (1995) ("Like the Massachusetts Supreme Judicial Court, we conclude that the statutory scheme pertaining to paternity actions . . . does not foreclose the Superior Court's jurisdiction to determine whether a putative father is . . . the biological father of a child."); Jackson v. Conland, 178 Conn. 52, 55, 420 A.2d 898 (1979) (citing Massachusetts case law defining the prudent investor rule).
In Meagher v. Kimball, 220 Mass. 32, 34, 107 N.E. 431 (1914), the Massachusetts Supreme Judicial Court held that a suit may be brought against a temporary administrator where the plaintiff sought to recover deposits that were allegedly held in trust by the decedent. The Meagher court found that: "The deposits were funds held by the testator in trust for his son, the plaintiff, who is the beneficial owner. These deposits are no part of the assets of the estate, and consequently no title or interest therein is vested in the special administrator. While the legal title was in the trustee during his lifetime, upon his decease the plaintiff became entitled to the immediate possession of the books and deposits which they represented." Meagher v. Kimball, supra, 220 Mass. 34.
The plaintiff has also cited In re Estate of Levine, 157 Misc. 454, 457-58, 284 N.Y.S. 255 (N.Y.Sur.Ct. 1935), as authority for the proposition that the court has subject matter jurisdiction over the present suit. Our Supreme Court recently stated that New York case law may be instructive in a case involving statutory interpretation. See Clerk Of The Superior Court v. Freedom Of Information Commission, 278 Conn. 28, 39-40, 895 A.2d 743 (2006).
In Levine, the court permitted the plaintiff to bring a suit against a temporary administrator where "the temporary administrator [had] a certain asset, namely a sum of $300, which [was] not the property of the estate and [was] the unquestionable property of the [plaintiff]." In re Estate of Levine, supra, 157 Misc. 457-58.
In her complaint, the plaintiff here has alleged that the decedent "was responsible for the collection of income and receipts belonging to the plaintiff and the depositing of the same into bank accounts for the plaintiff's benefit . . . During said period and time . . . [the decedent] opened a checking account under the name `Catherine D. Sanzo d/b/a Sanzo Realty' which she maintained in various banks from its inception, as aforesaid, until July 22, 2005." In ruling on the defendant's motion to dismiss, the court must consider these allegations in their most favorable light. See Filippi v. Sullivan, supra, 273 Conn. 8. The court, relying on the statutory language of § 45a-317, which only gives the temporary administrator the power to take possession of all the "real and personal property of the deceased," as well as the holdings of Meagher v. Kimball, supra, 220 Mass. 34 and In re Estate of Levine, supra, 157 Misc. 457-58, finds that there is subject matter jurisdiction to hear the plaintiff's action and, therefore, denies the defendant's motion to dismiss.
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss is denied.
It is so ordered.