Opinion
No. CV 09-4009454
September 16, 2009
MEMORANDUM OF DECISION MOTION TO STRIKE SPECIAL DEFENSE
This action is an appeal from a decree of the probate court regarding the disposition of assets from the estate of John P. Bigos ("estate"). The plaintiffs in this action, Edward Stambovsky and Kathleen DeMartino, are coexecutors of the estate. The defendants, Susan Norz and Thomas Cloutier, represent the interests of Patricia Lilian Bigos, a minor and a beneficiary of the estate. Norz serves as the guardian of her estate, and Cloutier serves as her guardian ad litem.
This action is one of two appeals directed at two separate decrees from the probate court regarding the disposition of assets from the estate. This action is an appeal from a decree dated November 12, 2008. The second action, Stambovsky v. Norz, Superior Court, judicial district of Norwich at New London, Docket No. CV 09 4009454, is an appeal from a decree dated April 2, 2009.
The East Lyme probate court is also a defendant in this action.
According to the plaintiffs' complaint, on July 25, 2008, the defendants filed a motion with the probate court seeking an order directing the plaintiffs to transfer certain items of personal property from the estate to Norz. The plaintiffs also allege that on November 12, 2008, the probate court held a hearing and issued a decree regarding the personal property. The plaintiffs claim that probate court lacked jurisdiction to take any action regarding the personal property. The plaintiffs further allege that the probate court does not have the jurisdiction to construe the will, which they maintain is the province of the superior court.
The plaintiffs have filed a will construction action with the superior court, which is captioned Stambovsky v. Norz, Superior Court, judicial district of Norwich at New London, Docket No. CV 08 4008700.
In her answer to the plaintiffs' complaint, Norz asserted a special defense stating that the plaintiffs' action is barred by the doctrine of primary jurisdiction. Pending before the court is the plaintiffs' motion to strike Norz' special defense on the ground that the doctrine of primary jurisdiction applies to administrative appeals only and not probate appeals.
"[A] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978); see also Connecticut National Bank v. Voog, 233 Conn. 352, 354-55, 659 A.2d 172 (1995). "In . . . ruling on [a] . . . motion to strike, the trial court [has an] obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
Norz' first special defense states: "The Plaintiff's appeal is barred by the doctrine of primary jurisdiction." This motion to strike depends on the scope of the phrase "primary jurisdiction." The plaintiffs contend that the doctrine of primary jurisdiction applies only to administrative appeals, whereas Norz insists that it also applies to probate appeals.
The plaintiffs are correct that the phrase "primary jurisdiction" typically refers to jurisdictional disputes between administrative agencies and courts. "The doctrine of primary jurisdiction is a rule of judicial administration created by court decision in order to promote proper relationships between the courts and administrative agencies charged with particular regulatory duties . . . Primary jurisdiction . . . applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views." (Citations omitted; internal quotation marks omitted.) Waterbury v. Washington, 260 Conn. 506, 574, 800 A.2d 1102 (2002).
Nevertheless, Connecticut courts have also used the phrase "primary jurisdiction" in the context of determining whether the probate court or the superior court has jurisdiction. "The Superior Court cannot exercise a primary jurisdiction which by the statute is reposed in the Courts of Probate. It can settle an account only on an appeal from doings of the Court of Probate and then only so far as it can without exercising a power vested exclusively in the Court of Probate." First National Bank Trust Co. v. McCoy, 124 Conn. 111, 115, 198 A. 183 (1938); see also Meyer v. Peck, Superior Court, judicial district of Litchfield, Docket No. CV 07 4006664 (July 8, 2008, Marano, J.) (using same quote); Salafia v. Salafia, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 95 0249964 (May 22, 1996, Silbert, J.) [ 16 Conn. L. Rptr. 601] (using same quote).
Because Connecticut courts have used the phrase "primary jurisdiction" to refer to jurisdictional disputes between the probate and superior courts, and given that the court must view the special defense of primary jurisdiction in the light most favorable to preserving its legal sufficiency, the motion to strike is denied.
CT Page 19374