Opinion
No. CV 04 0831030 S
July 29, 2004
MEMORANDUM OF DECISION
This is an action purportedly brought by the executor of an estate on behalf of a decedent. The defendants have moved to dismiss for lack of subject matter jurisdiction. They claim that the plaintiff has never been appointed the administrator of the estate, and thus has no standing to bring the action.
The facts were virtually agreed upon at oral argument and are supported by documents presented in connection with the motion to dismiss. The original complaint alleges that "Juan A. Rodriguez is Executor of the Estate of his father, Juan Rodriguez, the Last Will and Testament having been filed with the Probate Court for the District of Marlborough." When the current attorney for the plaintiff entered her appearance, she submitted a revised complaint. The later version more accurately alleged that no executor in fact had been appointed, but that a will of the decedent named Juan A. Rodriguez to be the executor and that this action was being filed "to preserve the estate's interest." The later version also correctly states that the applicable probate court is that for the district of East Hampton.
The defendants moved to dismiss for lack of subject matter jurisdiction, on the ground that neither an unappointed putative personal representative nor an estate per se has standing to pursue an action on behalf of a decedent. This of course is a correct statement of the law; see Isaac v. Mount Sinai Hospital, 3 Conn.App. 598 (1985); and the plaintiff does not seriously dispute this proposition. While the motion to dismiss was pending, however, the plaintiff sought to substitute as a party plaintiff Luis Rodriguez, a brother of Juan A. Rodriguez and son of Juan Rodriguez. Luis was reportedly appointed administrator on July 13, 2004. For the purpose of this decision, I will accept that representation as true.
It does not matter, however, whether Luis Rodriguez is now a duly appointed representative of the estate, for there never was a valid action for him to be substituted into. I am persuaded by the reasoning of Estate of Boulais v. Boulais, 1995 Ct.Super. Lexis 327, 13 Conn. L. Rptr. 462 (Hodgson, J.), and Estate of Johnson v. Roth, 1995 Ct.Super. Lexis 1973, 14 Conn. L. Rptr. 542 (D'Andrea, J.), to the effect that an action attempted to be brought by a nullity has never legally existed, because the court never had subject mater jurisdiction. Attempted substitutions are, then, ineffective. Finally, because a motion to dismiss alleging subject matter jurisdiction may be brought at any time, the fact that another pleading preceded the motion to dismiss is immaterial.
The motion to dismiss is granted.
Beach, J.