Opinion
No. HHD CV X04 04 4034729 S
December 2, 2008
MEMORANDUM OF DECISION ON MOTION TO DISMISS (#140)
This matter concerns an appeal from an order, issued by the Probate Court, District of Newington, dated April 26, 2004, which authorized the defendant, as successor administrator (defendant) to sell two parcels of real estate which are assets of an estate. The parties presented oral arguments and evidence to this court at a hearing on November 18, 2008 concerning the defendant's motion to dismiss (motion) on the ground of lack of subject matter jurisdiction. The defendant presented affidavits, with exhibits, and a memorandum of law in support of the motion. The plaintiffs submitted a memorandum of law in opposition.
After consideration of the parties' submissions and arguments, the court issues this memorandum of decision. For the reasons stated below, the motion to dismiss is granted.
I Background
The extensive prior legal history of the estate at issue here was set forth by the Appellate Court in Zanoni v. Lynch, 79 Conn.App. 309, 310-13, 830 A.2d 304, cert. denied, 266 Conn. 929, 837 A.2d 804 (2003) ( Zanoni I), and in Zanoni v. Lynch, 79 Conn.App. 325, 830 A.2d 314, cert. denied, 266 Conn. 928, 837 A.2d 803 (2003) ( Zanoni II). This proceeding concerns the Probate Court's subsequent order authorizing the defendant, as successor administrator of the estate, to sell the same real property which was the subject of the Appellate Court's decisions in those earlier appeals.
Pursuant to General Statutes § 45a-165, by order dated April 26, 2004, since a previously ordered public sale did not take place under the prior fiduciary, the Probate Court ordered the defendant, as successor administrator, to sell at public sale two parcels of real estate, known as 55 Highland Street, Wethersfield, Connecticut and 21 Brightwater Road, Old Lyme, Connecticut, which are assets of the estate of Helen A. Benny. In the Probate Court's decree allowing the plaintiffs' appeal from probate, dated May 21, 2004, which is part of this court's file, the plaintiffs' appeal from the Probate Court's April 26, 2004 order was allowed. Therein, the plaintiffs were ordered to give notice of the appeal to the defendant by serving him with process.
General Statutes § 45a-165(a) provides, "When any conservator, guardian, administrator, executor or trustee, who has been authorized under the provisions of sections 45a-164 to 45a-169, inclusive, and 45a-428 to sell or mortgage any real property, has died, resigned or been removed without having sold or mortgaged such real property, the court of probate by which such sale or mortgage was authorized may, upon written application by his duly appointed successor, authorize the sale or mortgage of the real property remaining unsold or unmortgaged upon his giving such probate bond, if any, and upon such further notice, if any, as said court orders."
In their first amendment to reasons for appeal (#113), the plaintiffs, Rosalie Benny Zanoni and Paul Zanoni, state that their "appeal concerns an authorization by the Probate Court of Newington to sell two parcels of real property known as 55 Highland Street, Wethersfield, Connecticut . . . and 21 Brightwater Road, Old Lyme, Connecticut . . ." In their demand for relief they claim (1) that the Probate Court's order must be vacated and (2) they seek an order in the nature of a mandamus requiring the Probate Court to approve the administratrix's report regarding the estate's insolvency and to settle the estate of Helen A. Benny within sixty days.
The marshal's return, which is part of the court's file, states that the only person served with process in this matter was the named defendant, Joseph A. Cipparone, d.b.n.c.t.a.
In his motion, the defendant contends that, as a result of his resignation as successor administrator of the estate, the plaintiffs' appeal of the Probate Court order, which authorized him, as successor administrator, to sell the real property to satisfy the estate's debts, has become moot. He argues that, since the Probate Court order is no longer in effect, the court does not have the power to grant the plaintiffs any practical relief and lacks subject matter jurisdiction.
In opposition to the motion, the plaintiffs contend that the motion was filed prematurely, that the defendant no longer has standing in this matter, and that "this matter contains collateral consequences in addition to the order to sell the devised real property." See plaintiffs' memorandum of law (#142), page 1.
The facts which are germaine to the issue raised by the motion are undisputed. These facts are discussed further below.
II 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.) R.C. Equity Group, LLC v. Zoning Commission of Bourough of Newtown, 285 Conn. 240, 248, 939 A.2d 1122 (2008).
"Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The objection of want of jurisdiction may be made at any time . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Bingham v. Dept. of Public Works, 286 Conn. 698, 701, 945 A.2d 927 (2008).
"Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause. (Internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 537, 893 A.2d 389 (2006). Accordingly, the court is obligated to address the defendant's motion to dismiss and can only consider the plaintiffs' subsequently filed motion for summary judgment (#144) if the court determines that it has subject matter jurisdiction.
"[I]n ruling [on] whether a complaint survives a motion to dismiss, 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.) Windels v. Environmental Protection Commission, 284 Conn. 268, 290, 933 A.2d 256 (2007). "[I]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Novak v. Levitt, 287 Conn. 71, 79, 951 A.2d 514 (2008).
III Discussion A Mootness
An appeal to the Superior Court from a Probate Court determination is provided for in General Statute § 45a-186(a). "The function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo." (Internal quotation marks omitted.) Sandford v. Metcalfe, 110 Conn.App. 162, 168, 954 A.2d 188, cert. denied, 289 Conn, 931 (2008).
When this probate appeal was filed, General Statutes § 45a-186(a) provided, in relevant part: "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 in accordance with subsection (b) of this section."
"[P]robate proceedings are not civil actions." Board of Education v. Tavares Pediatric Center, 276 Conn. 544, 558, 888 A.2d 65 (2006) (citing Slattery v. Woodin, 90 Conn. 48, 50, 96 A. 178 (1915). "An appeal from a probate order or decree to the Superior Court is not a civil cause of action. It has no more of the ordinary attributes of a civil action than the original proceedings in the court of probate. Slattery v. Woodin, [ supra, 90 Conn. 50]. That pleadings after the reasons of appeal `[shall] thereafter follow in analogy to civil actions'; Practice Book [10-76(a)]; `expresses the proper status of an appeal from probate, as a special proceeding authorized by statute, but not a civil action. Independently of the language of the rule, appeals from probate are not civil actions because it has always been held that the Superior Court, while hearing appeals from probate, sits as a court of probate and not as a constitutional court of general or common-law jurisdiction. It tries the questions presented to it de novo, but in so doing it is . . . exercising a special and limited jurisdiction conferred on it by the statute authorizing appeals from probate.' Slattery v. Woodin, supra, 50-51." (Emphasis in original.) Silverstein's Appeal From Probate, 13 Conn.App. 45, 53-4, 534 A.2d 1223 (1987).
At the time the defendant's motion was filed in this court, the Probate Court had accepted the defendant's resignation as successor administrator of the estate, subject only to approval of the defendant's final accounting. See Probate Court order, dated September 15, 2008, annexed as Exhibit B to defendant's counsel's affidavit (#139). By order dated November 17, 2008, the defendant's final account was allowed and approved. In that order, the Probate Court stated that it was not appointing a successor administrator "at this time." See Exhibit A to defendant's counsel's supplemental affidavit (#150). Thus, the defendant's resignation has become effective.
In their memorandum (#142), page 1, the plaintiffs contend that the Probate Court's order of April 26, 2004 became moot when the defendant failed to sell the properties in June 2004 and "also will be moot when Administrator Cipparone's final accounting is accepted." Their argument concerning the premature filing of the motion was based on the lack of acceptance of the final accounting. Since the final accounting has been approved, and the defendant's resignation as successor administrator is effective, and since the plaintiffs agree that the April 26, 2004 order is moot, the court deems that portion of the plaintiffs' argument to be abandoned.
"Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [this] court's subject matter jurisdiction . . . We begin with the four part test for justiciability . . . 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." (Citation omitted; internal quotation marks omitted.) State v. Boyle, 287 Conn. 478, 485-86, 948 A.2d 460 (2008).
"Mootness . . . imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties . . . Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties." (Internal quotation marks omitted.) Iacurci v. Wells, 108 Conn.App. 274, 276, 947 A.2d 1034 (2008).
Here, the only practical relief which the court could have granted the plaintiffs in this probate appeal, an order vacating the Probate Court's order authorizing the defendant, as successor administrator, to sell the real property, has no purpose. The plaintiffs and the defendant agree that the Probate Court's order is moot, since the defendant is no longer the successor administrator. The court may not decide a moot question "disconnected from the granting of actual relief or from the determination of which no practical relief can follow . . ." (Internal quotation marks omitted.) Ayala v. Smith, 236 Conn. 89, 93, 671 A.2d 345 (1996).
In the event sale of the real property is sought again, a new Probate Court order to a new administrator would have to be issued. General Statutes 45a-165(a) provides for such a circumstance: "When any . . . administrator . . . who has been authorized . . . to sell or mortgage any real property, has . . . resigned or been removed without having sold or mortgaged such real property, the court of probate by which such sale or mortgage was authorized may, upon written application by his duly appointed successor, authorize the sale or mortgage of the real property remaining unsold or unmortgaged . . ." (Citations omitted.)
B Mandamus
While the plaintiffs attempted to expand their appeal from probate by including in their reasons for appeal a request for an order in the nature of a mandamus requiring the Probate Court to approve the 1997 administratrix's report and to settle the estate of Helen A. Benny, such relief is beyond the parameters of this proceeding.
First, as noted above, this is a probate appeal, not a civil action. A mandamus must be sought in a civil action. "An action for mandamus is a lawsuit like any other lawsuit . . . Practice Book [§ 23-46] requires that a mandamus action commence with service of a writ and complaint as in other civil actions . . ." (Citation omitted; footnote omitted.) Marciano v. Piel, 22 Conn.App. 627, 628, 579 A.2d 539 (1990). While Practice Book § 23-47 provides that `[a]n order in the nature of a mandamus may be made in aid of a pending action . . .," a probate appeal is not a civil action. See Silverstein's Appeal From Probate, supra, 13 Conn.App. 53-4. The plaintiffs may not convert this probate court appeal into a civil action by adding a request for a mandamus to their reasons for appeal.
Second, the probate judge is not a party to this probate appeal; only Cipparone, in his capacity as administrator, was made a party. To secure a mandamus against a probate judge, that individual must be a party to a civil action in which mandamus is sought. See Kiszkiel v. Gwiazda, 174 Conn. 176, 177, 180, 383 A.2d 1348 (1978) (mandamus against defendant probate judge); Williams v. Cleaveland, 76 Conn. 426, 430, 56 A. 850 (1904) (proper method of obtaining review of refusal to permit a probate appeal is by application for a writ of mandamus); Honan v. Greene, 37 Conn.App. 137, 143-44, 655 A.2d 274 (1995) (same).
Accordingly, contrary to the plaintiffs' argument, General Statutes § 45a-242(e), concerning the survival of suits against fiduciaries, is inapplicable here. Section 45a-242(e) provides, "[a]ll suits in favor of or against the original fiduciary shall survive to and may be prosecuted by or against the person appointed to succeed such fiduciary." As explained above, this proceeding is not a civil action against the defendant, it is a statutory appeal from the order of the Probate Court. There is no civil action which survives.
Similarly unpersuasive is the plaintiffs' contention that, once the defendant is removed as the successor administrator, as has occurred, he would have no standing in this court to argue his motion. As noted above, the only defendant here is Cipparone, in his capacity as successor administrator. No other person or entity has been named or served as a defendant. "This court has no jurisdiction over persons who have not been made parties to the action before it. Any judgment rendered in this action . . . would not be binding as to them." (Internal quotation marks omitted.) Windels v. Environmental Protection Commission, supra, 284 Conn. 280.
Fundamental tenets of due process require that a party be given the opportunity to vindicate his right to defend his interests. See Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 288-89, 914 A.2d 996 (2007). A defendant has standing to defend himself when he is party to a court proceeding in a fiduciary capacity, and to seek dismissal of an action by contending that the court lacks subject matter jurisdiction.
The plaintiffs also argue that, since the Probate Court indicated its September 15, 2008 order that no successor administrator was named since the court continued to be unable to find anyone willing to serve, this matter would be left in a state of limbo. See General Statute § 45a-290(b) (stating that the Probate Court shall appoint a successor administrator).
Sec. 45a-290(b) provides, "If during the settlement of an estate, the executor or the administrator with the will annexed appointed by the court dies or resigns or is removed from such trust, and no alternate or successor has been named in the will, the court shall appoint an administrator of the estate with the will annexed, de bonis non, subject to the same provisions as to hearing, notice, waiver of or order dispensing with notice, selection of the administrator and bond, as are stated in this section and section 45a-286."
Again, this probate appeal concerns the Probate Court's April 2004 order directing the defendant to sell the real estate at public sales in June 2004. In the Probate Court's September 15, 2008 order, page 2, that court stated that it was "looking to the [estate's] creditors for suggestions on a new administrator" and that "[l]acking some agreement amongst the creditors on proceeding with a new administrator whom the court finds acceptable, it would appear that this estate will continue to linger indefinitely with no movement toward its long-overdue completion." In this proceeding, this court may not speculate that the Probate Court will leave the matter in limbo.
C Collateral Consequences
Finally, the plaintiffs contend that there are collateral consequences which permit the court to retain jurisdiction over this matter even though otherwise it is moot. See Wilcox v. Ferraina, 100 Conn.App. 541, 920 A.2d 316 (2007). In Wilcox, the court stated that the Supreme Court "has allowed us to retain jurisdiction where the matter being appealed creates collateral consequences prejudicial to the interests of the appellant, even though developments during the pendency of the appeal would otherwise render it moot." (Internal quotation marks omitted.) Id., 548. "We have determined that a controversy continues to exist, affording the court jurisdiction, if the actual injury suffered by the litigant potentially gives rise to a collateral injury from which the court can grant relief." State v. McElveen, 261 Conn. 198, 205, 802 A.2d 74 (2002). "[T]he litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not. This standard provides the necessary limitations on justiciability underlying the mootness doctrine itself. Where there is no direct practical relief available from the reversal of the judgment, as in this case, the collateral consequences doctrine acts as a surrogate, calling for a determination whether a decision in the case can afford the litigant some practical relief in the future. The reviewing court therefore determines, based upon the particular situation, whether . . . the prejudicial collateral consequences are reasonably possible." Id., 208.
However, even if there are collateral consequences as to which the court may provide practical relief, an actual controversy between the parties still must exist. See id., 217; see also State v. Boyle, supra, 287 Conn. 485-86. Here, the defendant is no longer the administrator. He no longer has anything to do with the estate. As stated above, he is the only defendant, in his capacity as administrator only. In view of the change in his status, there is no longer an actual controversy between the plaintiffs and the defendant. In the absence of such a controversy, this matter is not justiciable; it is moot. See State v. McElveen, supra, 261 Conn. 218.
In addition, the court is unpersuaded that the "collateral consequences" to which the plaintiffs allude are "prejudicial collateral consequences" which "are reasonably possible." State v. McElveen, supra, 261 Conn. 208. According to the plaintiffs' argument, the "collateral consequences" on which they rely have to do with the fourth, fifth, and sixth counts of their reasons for appeal. These concern, respectively, the plaintiffs' claims that the Probate Court's authority to sell real property has expired, that the sale of specifically devised real property is prohibited when the will otherwise directs, and that the Probate Court has failed to settle the estate in a reasonable time.
Again, as to these, in their prayer for relief, the plaintiffs seek an order in the nature of mandamus requiring the Probate Court to approve the 1997 report of the Administratrix and to settle the estate within sixty days. In their memorandum, the plaintiffs argue that, since the Probate Court refuses to appoint an administrator, they will have no opportunity to litigate the issues. As stated above, the Probate Court has stated that it is looking to the Estate's creditors for a successor administrator. The plaintiffs have not shown that the Probate Court will not afford them the opportunity to litigate issues. In fact, the extensive legal history of this estate militates against finding that such a result is reasonably possible.
Thus, the plaintiffs' claim of "actual injury suffered by the litigant[s]," State v. McElveen, supra, 261 Conn. 205, is the premise that they will be precluded in the future from challenging the Probate Court's authority to order the real estate to be sold. This contention is unpersuasive. First, final judgments resulted from the numerous prior cases involving the plaintiffs, the estate, and the real property. Therein, the courts have afforded the plaintiffs extensive opportunities to litigate their claims and legal theories, and then decided against their arguments.
For example, in their fifth count, the plaintiffs base their claim of "the prohibition of statute to sell specifically devised real property to pay testamentary expenses" on General Statutes § 45a-426. In Zanoni I, 79 Conn.App. 315 n. 2, the Appellate Court stated, "Although we agree with the plaintiffs that § 45a-426(b) did not grant authority to the Probate Court to order the sale of the subject premises, we nevertheless conclude that the [trial] court properly relied on General Statutes § 45a-428 as a source of authority for the sale." Further, the Appellate Court stated that "the trial court properly concluded that the Probate Court possessed the authority to order the sale of the subject property." Id., 320.
General Statutes § 45a-426(b) provides: "Specific legacies shall not be taken or sold for the payment of debts and charges against the estate of the testator when there is other property, real or personal, sufficient and available therefor and not specifically devised or bequeathed; but real property may be sold in lieu thereof, when it is necessary for such purpose, unless such will otherwise directs."
Indeed, the Appellate Court repeatedly emphasized this conclusion. Later in Zanoni I it stated, "although title to specifically devised real property passes to a decedent's devisees at his death, such title is not absolute . . . [Section] 45a-428 afforded the Probate Court the authority to order the sale of the specifically devised property." (Footnote omitted.) Id., 322.
In Zanoni II, 79 Conn.App. 329, the Appellate Court stated that the Superior Court's decision, which was affirmed in Zanoni I, had preclusive effect. It then went on to explain that principles of collateral estoppel and res judicata barred the plaintiffs' claims. "The principles underlying the doctrine of res judicata, or claim preclusion, are well settled. [A] valid, final judgment rendered on the merits by a court of competent jurisdiction is an absolute bar to a subsequent action between the same parties, or those in privity with them, upon the same claim or demand . . . Furthermore, the doctrine of claim preclusion . . . bars not only subsequent relitigation of a claim previously asserted, but subsequent relitigation of any claims relating to the same cause of action which were actually made or which might have been made . . . Probate court decrees . . . are final judgments for the purpose of the doctrine of res judicata." (Emphasis in original; internal quotation marks omitted.) Id., 338.
The Appellate Court then went on to state, with regard to the plaintiffs' five appeals relating to the sale of the real property, "We conclude that the court properly rendered summary judgment in the defendants' favor with regard to the appeals related to the sale of the properties. Those appeals do raise the same issue, namely, whether the Probate Court, under the circumstances of this case, properly ordered the sale of the properties. The Probate Court's decree rested on conclusions concerning the estate's solvency, the status of the plaintiffs' ownership rights in the subject property and the applicability of § 45a-428. The [trial] court, in its decision of October 30, 1995, addressed all of those issues and resolved them adversely to the plaintiffs. The court rendered a valid final judgment on the merits. The doctrine of res judicata bars the plaintiffs from raising those claims in these appeals. By doing so, they seek relief on the basis of claims that already have been rejected as a matter of law in another court. Further, the doctrine of collateral estoppel bars the plaintiffs from relitigating issues that underlie the former adverse judgment." Id., 339.
The plaintiffs' assertion that they should be allowed to relitigate these issues by way of the fifth count in their amended reasons for appeal is hardly the type of collateral consequence which merits consideration of an otherwise moot probate appeal.
Second, the other collateral consequences contentions set forth by the plaintiffs, that the Probate Court's authority to sell real property has expired, and that the Probate Court has failed to settle the estate in a reasonable time, appear to be related. There has been no showing that the plaintiffs will not be able to litigate such issues when new Probate Court proceedings ensue. See Iacurci v. Wells, supra, 108 Conn.App. 280-81 (litigant not estopped from litigating issue in a subsequent proceeding where they had been unable to obtain review due to mootness).
As explained above, this court may not issue a mandamus in this probate court appeal. The only other relief sought by the plaintiffs in their prayer for relief is a order vacating the April 2004 order of the Probate Court to sell the real property, which the parties agree is moot.
Also, the collateral consequences cited by the plaintiffs are not of the kind recognized by the Supreme Court as justification for the consideration of a moot appeal. For example, in Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 685 A.2d 670 (1996), which was cited by the Appellate Court in Wilcox v. Ferraina, supra, 100 Conn.App. 548, the Supreme Court cited other pending litigation which would be affected by its decision on the subject appeal as the basis for retaining jurisdiction. The Supreme Court stated that, "the plaintiffs have filed a separate action . . . in which they are claiming damages, including loss of profits, arising from the department's granting of license to [vehicle dealer] to sell Mazdas. Because, as the parties agree, the outcome of that action may be substantially affected by our ruling on the present appeal, we conclude that there are collateral consequences sufficient to allow this court to retain jurisdiction." Id., 239 Conn. 440 n. 3. Here, the court has not been made aware of any other pending litigation which would be affected by this court's adjudication of the appeal.
Similarly, the situation here is unlike that in Wilcox, where a damages claim remained pending in the trial court. "Specifically, the validity of the earlier finding of unlawful entry and detainer will govern the disposition of the damages claim currently pending before the trial court. If the court's finding of liability was ill-founded, as the defendants maintain, then there would be no basis in law for awarding damages . . ." Wilcox v. Ferraina, supra, 100 Conn.App. 549.
In this probate appeal which has become moot, the court may not retain jurisdiction to issue an order in the nature of a mandamus. Since this probate appeal is moot, the court lacks subject matter jurisdiction.
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss is granted. It is so ordered.