Opinion
HHBCV135015852S
06-13-2017
John Sakon v. STJKBJ Investments Trust, M. Teresa Seconchick Trustee
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Robert E. Young, Judge.
During the pendency of this probate appeal, the issue of subject matter jurisdiction arose. Although no motion to dismiss the appeal has been filed, " whenever it is found . . . that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." The court is obligated to address issues of subject matter jurisdiction. Practice Book § 10-33. " [T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time." (Internal quotation marks omitted.) Webster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002). " Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . In other words, [s]ubject 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 . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citation omitted; internal quotation marks omitted.) New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 334-35, 857 A.2d 348 (2004). Thus, the court has undertaken an analysis of subject matter jurisdiction in this matter and, finding no such jurisdiction, dismisses the appeal.
FACTS AND PROCEDURAL HISTORY
On January 20, 1992, Stephen Sakonchick and Teresa Sakonchick established a revocable trust, naming themselves as settlors and trustees. The parties stipulate that the trust properties consist of movables, not real property. The parties also stipulate that the terms in the trust agreement apply to both the trust and the trust agreement. The following provisions of the trust are relevant to the analysis conducted herein:
Paragraph 2.01 provides, " During the life of either Settlor, this trust, or any provision hereof, may be amended, altered, revoked or terminated in whole or in part, by an instrument in writing signed by either Settlor and delivered to the Trustee."
Paragraph 3.02 provides in part, " The beneficiaries of this trust are the Settlors, their children and grandchildren (collectively 'Beneficiaries')."
Paragraph 4.12 provides, " In the event of the death or resignation of an original Trustee named herein, or in the event any Trustee is unable to administer or manage this trust, then the following named children of the Settlors shall be appointed as successor Trustee in the following order: James N. Sakonchick, Donald M. Sakonchick, Linda Sakonchick Kolpak, Stephen Sakonchick, II and John A. Sakon (a/k/a/ [sic] John A. Sakonchick)."
Paragraph 4.13 provides in part, " This trust is a Texas trust and shall be administered in the State of Texas and its validity, construction and all rights thereunder shall be governed by the laws of that state."
The plaintiff's operative complaint is the amended complaint, 201.00, dated March 30, 2017. The following facts asserted therein do not appear to be in dispute. On January 26, 2012, the plaintiff, John A. Sakon, petitioned the Southington Probate Court for an accounting of the trust, asserting that Teresa Sakonchick was incompetent and seeking appointment of a successor trustee. Stephen Sakonchick passed away on June 9, 2012. No successor trustee was appointed in his stead as required by Paragraph 4.12 of the trust agreement. The plaintiff's initial complaint alleges that, on April 13, 2013, the probate court denied the plaintiff's petition, holding that the sole remaining trustee, Teresa Sakonchick dissolved the trust on August 30, 2012.
The plaintiff filed an additional amended complaint, 206.00, without leave or permission. That pleading is not operative. Practice Book § 10-60(a)(3).
The operative amended complaint makes similar allegations but omits specific dates of occurrence.
The plaintiff filed the subject appeal of the probate court's decision with a return of service, 101.00, filed on July 30, 2013. The summons lists one defendant: " STJKBJ Investments Trust, M. Teresa Sakonchick Trustee." The initial complaint does not allege that there is any defendant other than the trust, nor were there any allegations against M. Teresa Sakonchick other than that she was present at the probate court hearing but said nothing. In Paragraph 2 of the operative amended complaint, the plaintiff newly asserts, " the second named defendant is M. Teresa Sakonchick, individually and as Trustee for the trust." M. Teresa Sakonchick was not served with process in her individual capacity, nor does it appear that she was served in her capacity as trustee. Rather, the summons lists only one defendant, " STJKBJ Investments Trust, M. Teresa Sakonchick Trustee" and the return of service lists only one defendant, " STJKBJ Investments Trust."
The trust states the name as " Teresa Sakonchick." The appeal states the name as " M. Teresa Sakonchick." As neither party has asserted that these are different individuals, the court presumes they are one and the same.
A hearing was held on June 5, 2017 to address the issue of subject matter jurisdiction. At that time, the parties stipulated that M. Teresa Sakonchick passed away on May 8, 2016. To the extent that the trust was not revoked by M. Teresa Sakonchick and survived the probate court decision, no successor trustee has been appointed as her successor as required by Paragraph 4.12 of the trust agreement.
Based on the foregoing and for the reasons stated below, the court finds that it has no subject jurisdiction over this appeal and, therefore, the appeal is dismissed.
ANALYSIS OF JURISDICTION AND FORUM
A. The Trust is Not a Legal Entity Which Can be Sued
It is well accepted in Texas that a trust cannot be sued. " For a trial court to have jurisdiction over a party, the party must be properly before the court in the pending controversy as authorized by procedural statutes and rules. In re Mask, 198 S.W.3d 231, 234 (Tex.App.-San Antonio 2006, orig. proceeding). 'In no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance.' Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991) (citing TEX.R.Civ.P. 124). It is well established that suits against a trust must be brought against its legal representative, the trustee. See Ray Malooly Trust v. Juhl, 186 S.W.3d 568, 570 (Tex. 2006). Thus, for relief to be ordered 'against a trust, ' its trustee must be properly before the trial court as a result of service, acceptance, or waiver of process, or an appearance. In re Ashton, 266 S.W.3d 602, 604 (Tex.App.-Dallas 2008, orig. proceeding) . . . Therefore, failure to join the trustee of the trust was fatal to jurisdiction over that trust, and the court had no authority to set aside the trust." Tex. Capital Bank v. Asche, Court of Appeals, Fifth District, Dallas, Docket No. 05-15-00102-CV, (Tex.App. 2017). A case cited by the plaintiff, Ray Malooly Trust v. Juhl, Court of Appeals, Eighth District, El Paso, Docket No. 08-02-00512-CV, (June 17, 2004, Larsen, J.), cert. denied, 186 S.W.3d 568 (Tex. 2006) is not good law on this issue. On a petition for review, the Texas Supreme Court determined that the lower court incorrectly reasoned that a trust can sue or be sued directly, but denied the review petition on other grounds. Ray Malooly Trust, supra, at 570-71.
Similarly, the majority of Connecticut superior courts have determined that a trust is not a legal entity that can sue or be sued. Bobo v. Jack Family Trust, Superior Court, judicial district of Hartford, Docket No. CV-15-6058346-S, (April 15, 2016, Huddleston, J.) [62 Conn.L.Rptr. 149, ]; Hall v. Bergman, Superior Court, complex litigation docket at Waterbury, Docket No. X02-CV-01-017751-S, (October 28, 2011, Shaban, J.); Booker v. Cappozziello, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV-05-4010211-S (July 21, 2006, Gilardi, J.) [41 Conn.L.Rptr. 693, ]. The one case cited by the plaintiff, Silver v. Holtman, Superior Court, judicial district of Hartford, Docket No. CV-05-4016440S (June 24, 2009, Rittenband, J.T.R.) [48 Conn.L.Rptr. 157, ], does not state that a trust is a legal entity which may sue or be sued. Rather, Judge Rittenband found that a trust was a legal entity that could own real property and, through a trustee, convey real property.
Although the plaintiff listed M. Teresa Sakonchick as trustee of the defendant trust and served M. Teresa Sakonchick with the writ, summons and complaint against the trust, only the trust is a defendant in this action. The trust is incapable of being sued. " [T]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction." (Internal quotation marks omitted.) Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008). " [S]ervice of process on a party in accordance with the statutory requirements is a prerequisite to a court's exercise of [personal] jurisdiction over that party." (Internal quotation marks omitted.) Bicio v. Brewer, 92 Conn.App. 158, 166-67, 884 A.2d 12 (2005). Therefore, " [p]roper service of process is not some mere technicality." Hibner v. Bruening, 78 Conn.App. 456, 458, 828 A.2d 150 (2003).
In amending the complaint, the plaintiff asserts that M. Teresa Sakonchick is a defendant. However, M. Teresa Sakonchick was deceased at the time of the amendment and no service was attempted upon her, either individually or in her capacity as trustee. Thus, this court has no subject matter jurisdiction over the trust and the appeal must be dismissed.
B. There is No Trustee of the Trust
Prior to the commencement of this appeal, one of the two trustees, Stephen Sakonchick passed away. No successor trustee was appointed. The probate court held that the sole remaining trustee, M. Teresa Sakonchick dissolved the trust. At the time M. Teresa Sakonchick passed away, there was no longer a trust for which a successor trustee could be appointed. As the probate court no longer has jurisdiction due to the revocation of the trust by M. Teresa Sakonchick, the ability to now appoint one or more trustees is unexcogitable. To the extent that the trust may continue to exist because of this appeal, no service was made on M. Teresa Sakonchick while she was alive and none of the four listed successor trustees before the plaintiff has stepped up to serve as trustee. The fifth enumerated successor trustee is the plaintiff. The plaintiff is willing but is not able to serve as trustee because the appointment would create an issue of justiciability.
" [S]ubject matter jurisdiction and justiciability are closely related concepts. Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. Justiciability involves the authority of the court to resolve actual controversies. Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability 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 be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant. As we have recognized, justiciability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine. Consequently, a court may have subject matter jurisdiction over certain types of controversies in general, but may not have jurisdiction in any given case because the issue is not justiciable." (Internal citations omitted; internal quotation marks omitted.) Statewide Grievance Comm. v. Burton, 282 Conn. 1, 6-7, 917 A.2d 966 (2007).
If she was competent, M. Teresa Sakonchick revoked the trust and it no longer exists. The plaintiff asserts that M. Teresa Sakonchick was not mentally competent to revoke the trust. The position of the plaintiff is antithetical to that of the trust. If the plaintiff were to assume the role of trustee, the position of the trust would become his own, invoking a lack of justiciability. Thus, the plaintiff is unable to assume the role of trustee as to do so would deprive this court of jurisdiction in this appeal.
The trust provides for no other successor trustees if the listed successors do not assume those roles. There is no ability to appoint successor trustees. As the trust cannot be sued and there are no trustees who can be sued, this court is without subject matter jurisdiction.
ORDER
The appeal is dismissed for lack of subject matter jurisdiction.