Opinion
CV165037067S
11-17-2016
Caren Bandonee v. State of Connecticut Attorney General et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTIONS TO DISMISS (#103) (#104) (#109)
Robin L. Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
The court, having carefully reviewed the plaintiff, Caren Bandonee's complaint, can properly characterize this civil action as an appeal from a probate order denying the plaintiff's petition to be appointed as the permanent conservator of both person and estate for her mother, Beatrice Bandonee. As reflected in the probate court's memorandum of decision, of which this court takes judicial notice. See In re Justice V., 111 Conn.App. 500, 503, n.2, 959 A.2d 1063 (2008) (" [C]ourt may take judicial notice of the probate court file. See Schiavone v. Snyder, 73 Conn.App. 712, 717, 812 A.2d 26 (2002)"); the probate court initially appointed Attorney Kerry Knobelsdorff as the temporary conservator for Beatrice Bandonee. The probate court made that appointment on April 8, 2016, ex parte, in response to a petition for temporary conservatorship filed by the State of Connecticut, Department of Social Services, Division of Social Services' Protective Services for the Elderly (PSE). The April 8, 2016 decree notes that the ex parte appointment was necessary due to the risk of " immediate and/or irreparable injury to the mental or physical health or financial needs of [Beatrice Bandonee]."
The probate court further found that " clear and convincing evidence" had been presented that " immediate and irreparable harm" to Beatrice Bandonee's mental health, physical health, financial affairs, and legal affairs if a temporary conservator was not appointed. In support of that conclusion, the probate court specifically found that the plaintiff intended to remove her mother, Beatrice Bandonee from an assisted living facility to the State of New York; that there was an outstanding Adult Protective Services case in the State of New York; that the actions of the plaintiff as reported by PSE constituted abuse; that due to the severity of Beatrice Bandonee's health condition, she should not be released to the plaintiff's care; and that Beatrice Bandonee had no ability to meet her basic needs.
The probate court then held hearings on April 13 and April 22, 2016, for the purpose of confirming, revoking, or modifying the April 8, 2016 order. In a decree dated April 22, 2016, the probate court found by clear and convincing evidence that the temporary conservatorship should be continued. The probate court also found, inter alia, that the plaintiff had transported her mother from the State of New York to Connecticut on April 3, 2016; that an eviction action had been commenced in New York against both the plaintiff and Beatrice Bandonee; and that the plaintiff admitted that she transported her mother to Connecticut in order to escape Adult Protective Services in New York. The court further ordered that the appointment of Attorney Knoblesdorff would be in effect until May 8, 2016, unless an application was filed in the interim for permanent conservator.
Subsequently, both Attorney Knobelsdorff and the plaintiff filed petitions to be appointed as the permanent conservator. After the hearing, the probate court denied the plaintiff's petition and appointed Attorney Knobelsdorff as the permanent conservator in the May 24, 2016 decree underlying the present appeal. The plaintiff filed a motion to reconsider on June 8, 2016 which the probate court denied on June 14, 2016. The plaintiff commenced this action by service of writ, summons and complaint against the defendants, State of Connecticut, Office of the Attorney General, State of Connecticut, Probate Court, District of Saybrook, State of Connecticut, Department of Social Services, Division of PSE, and Peregrine Landing.
This memorandum will refer to State of Connecticut Attorney General, State of Connecticut Probate Court, District of Saybrook, State of Connecticut Department of Social Services, Division of PSE and Peregrine Landing collectively as the defendants.
The defendants have all filed motions to dismiss the plaintiff's appeal for lack of subject matter jurisdiction. Each defendant has cited several grounds for dismissing the appeal, however, all have sought to dismiss the appeal on grounds that it is untimely. Because the court agrees that it lacks subject matter jurisdiction because the plaintiff's appeal from the probate court's decision denying the plaintiff's petition is untimely, and that issue is dispositive of all of the motions, it is not necessary for the court to address all of the other grounds upon which the defendants rely for dismissal of the appeal. In addition, because these motions implicate the same facts and law, as to the timeliness of the plaintiff's probate appeal, this memorandum will resolve all three motions simultaneously. Oral argument was heard on the motions on November 14, 2016. The plaintiff appeared at oral argument, however she did not file a brief in opposition to the motions.
The plaintiff e-filed a letter to the court on November 10, 2016, which was provided to counsel on November 14, 2016, at oral argument, and which indicates that the plaintiff's mother, Beatrice Bandonee died. Notwithstanding the death of the decedent, and any rights which may be extinguished pursuant to the probate statutes as a result thereof, the court will rule on the motions to dismiss, as the plaintiff's appeal is still pending, and there is no motion before this court regarding what effect, if any, the decedent's death has on the pending appeal.
DISCUSSION
A
Legal Standard
A motion to dismiss properly attacks the jurisdiction of the court, essentially stating that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. Heussner v. Hayes, 289 Conn. 795, 802, 961 A.2d 365 (2008).
B
Time for Filing Probate Appeal--General Statutes § 45a-186(a)
Here, the applicable statute, § 45a-186(a), governs the procedure for appealing any order, denial or decree of a probate court. The statute provides in relevant part: " Except as provided in sections 45a-187 and 45a-188, any person aggrieved by any order, denial or decree of a Probate Court in any matter, unless otherwise specially provided by law, may, not later than forty-five days after the mailing of an order, denial or decree for a matter heard under any provision of section 45a-593, 45a-594, 45a-595 or 45a-597, sections 45a-644 to 45a-677, inclusive, or sections 45a-690 to 45a-705, inclusive, and not later than thirty days after mailing of an order, denial or decree for any other matter in a Probate Court, appeal therefrom to the Superior Court. Such an appeal shall be commenced by filing a complaint in the superior court in the judicial district in which such Probate Court is located . . ."
In Corneroli v. D'Amico, 116 Conn.App. 59, 60-61, 975 A.2d 107, cert. denied, 293 Conn. 928, 980 A.2d 909 (2009), the Appellate Court, pursuant to § 45a-186, affirmed the dismissal of an appeal from a Probate Court decision because it was filed more than thirty days after the decision. The court explained: " The right to appeal from a decision of the Probate Court is statutory. Satti v. Rago, 186 Conn. 360, 364, 441 A.2d 615 (1982); Sacksell v. Barrett, 132 Conn. 139, 146, 43 A.2d 79 (1945); R. Folsom, Connecticut Estates Practice, Probate Litigation (2d Ed. 2008) § 7:1, p. 7-2. Our legislation has always favored the speedy settlement of estates, and to that end has carefully limited the time within which such appeals [from probate] must be taken . . . It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation . . . Our courts of probate have a limited jurisdiction and can exercise only such powers as are conferred on them by statute . . . They have jurisdiction only when the facts exist on which the legislature has conditioned the exercise of their power . . . The Superior Court, in turn, in passing on an appeal, acts as a court of probate with the same powers and subject to the same limitations . . . In acting on an appeal from probate, the Superior Court does not exercise the jurisdictional powers vested in it by the constitution but, instead, exercises a special and limited jurisdiction conferred on it by the statutes . . . Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565-66, 192 A.2d 44 (1963) (internal quotation marks omitted)." Id., 63.
Thus, the right to appeal a decision of the Probate Court is strictly regulated by statute. The statute therefore specifically provides that any appeal from an order or decree of a probate court must be filed within thirty days of when the order was mailed, or within forty-five days of when the order was mailed if the order pertains to a matter heard under any provision of § § 45a-593, 45a-594, 45a-595 or 45a-597, § § 45a-644 to 45a-677, inclusive, or § § 45a-690 to 45a-705. Moreover, the statute specifically provides that any probate appeal " shall be commenced by filing a complaint in the superior court . . ." These requirements set forth in § 45a-186(a) are mandatory, and failure to comply with them " deprives the Superior Court of subject matter jurisdiction and renders such an untimely appeal subject to dismissal." Corneroli v. D'Amico, supra, 116 Conn.App. 67.
In the present case, the plaintiff seeks to appeal the probate court's denial of plaintiff's petition to be appointed as the conservator for her mother. Because the appointment of a conservator is a matter that is heard pursuant to § § 45a-644 to 45a-677, inclusive, the forty-five-day appeal period set forth in § 45a-186(a) applies. Even under this longer appeal period, the plaintiff's appeal is late. Specifically, the probate court denied the plaintiff's petition to be appointed as conservator on May 24, 2016. The plaintiff filed this action on July 20, 2016, which is fifty-seven days after the probate court denied the plaintiff's petition, and twelve days after the appeal period set forth in § 45a-186(a) had expired.
The fact that the plaintiff filed a motion for reconsideration during the appeal period does not save her late appeal. Section 45a-186(a) does not contain language which provides for the tolling of the appeal period during the pendency of a motion for reconsideration. Because the right to appeal from a decision of the probate court is statutory, and must be " exercised under the precise circumstances and in the manner particularly prescribed by the enabling legislation, " the absence of tolling language in the statute, precludes this court from interpreting the statute in such a manner. See Corneroli v. D'Amico, supra, 116 Conn.App. 63; compare General Statutes § 4-183(c)(2) (revised by P.A. 06-32 to expressly provide that the filing of a request for reconsideration under General Statutes § 4-181a(1)(a) tolls the time to file an administrative appeal to the superior court). The plaintiff's probate appeal is therefore untimely and must be dismissed because the court lacks subject matter jurisdiction.
CONCLUSION
Accordingly, for the foregoing reasons, the defendants' motions to dismiss are granted. The plaintiff's appeal is dismissed.