Opinion
No. CV 11 6008254
July 20, 2011
MEMORANDUM OF DECISION
This action arises from a dispute between the plaintiff, David Bausch, and his sister, the defendant, Lynne Vachon, in regard to the estate of their father, Albert Carl Bausch ("Bausch"). During his lifetime, Bausch held various bank accounts, some of which he made into joint accounts with both parties, others of which he made into joint accounts solely with the defendant.
Bausch executed a "Last Will and Testament" on June 13, 1995, naming his wife as executrix, and should she predecease him, his daughter, the defendant, would act as the executrix. At the time of Bausch's death on July 28, 2010, his wife had predeceased him. Accordingly, upon his death, the defendant completed and filed an application/administration of probate of the will on August 10, 2010. Without objection, the defendant was approved as executrix by the Norwich Court of Probate.
The plaintiff filed a nine-count complaint against the defendant in this court on March 18, 2011. He also filed an application with the Probate Court seeking the defendant's removal as executrix of their father's estate. Since the filing of this action, a contested hearing occurred at the Probate Court regarding the removal of the defendant based on many of the same claims alleged in the plaintiff's complaint with this court. On March 21, 2011, the Probate Court denied the plaintiff's request, and determined that based on the totality of the circumstances, he did not meet his burden of proof to remove the defendant as executrix.
On April 28, 2011, the defendant filed a motion to dismiss the plaintiff's complaint, along with a memorandum in support and an affidavit. The defendant filed his objection, memorandum in opposition, and affidavit on May 25, 2011. The parties appeared for oral argument at short calendar on June 6, 2011.
Discussion CT Page 16057
"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." (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). The defendant makes several arguments in support of its contention that the court lacks subject matter jurisdiction over the plaintiff's complaint. The court will address each of the defendant's arguments in turn.
Legal Sufficiency and Mootness of Counts One and Two
In counts one and two, alleging conversion and statutory theft, the plaintiff alleges that the defendant deprived him of his share of Bausch's bank accounts, to which he was entitled. In regard to these counts, the defendant first argues that "[t]he allegations . . . do not support a claim under theories of either statutory theft or conversion as plaintiff has not alleged or supplied a claim or supporting facts of intent or that the defendant's acts deprived plaintiff permanently or for an indefinite time." As to this argument, the court is satisfied that it should be raised by a motion to strike rather than a motion to dismiss. "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action. That should be done, instead, by a motion to strike . . . the practical difference being that if a motion to strike is granted, the party whose pleading is stricken is given an opportunity to replead in order to avoid a harsh result." (Citation omitted.) Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993).
Next, the defendant contends that based upon the assertions in her supporting affidavit, "the defendant recently distributed to plaintiff the amounts from the subject bank account. Therefore, there are no supporting facts that plaintiff was deprived of the property permanently, for an indefinite time, or the intent necessary under a claim of statutory theft. These counts should therefore be dismissed as moot, because the money was released to the plaintiff." The court will address this argument, given that "[m]ootness is a question of justiciability that must be determined as a threshold matter because it implicates [the] court's subject matter jurisdiction . . ." (Internal quotation marks omitted.) Valvo v. Freedom of Information Commission, 294 Conn. 534, 540, 985 A.2d 1052 (2010). For an action to be declared moot, however, evidence of that fact must be given, or acknowledgment by the opposing party must be shown, before the court can act. Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 451, 352 A.2d 291 (1974).
In her April 27, 2011 affidavit, the defendant attests: "I had no intention to deprive my brother of bank assets held in joint names with my father and my brother and myself. I held such funds back initially based on what I believed was the instruction of the prior Probate Judge. Having resolved that issue, said funds were released." In his May 21, 2011 affidavit, the plaintiff attests: "[The defendant] wrote me a check for $15,765.55. However, this is not the full amount I am owed, and as such I will not accept it. My attorneys returned the check to her attorneys, explaining my reasoning."
In light of this evidence, the court cannot declare this action to be moot. There remains a dispute as to the amount of funds that the defendant is owed. As a result, the defendant's motion to dismiss counts one and two is denied.
Exclusive Jurisdiction of the Probate Court As to Counts Three Through Nine
Count three alleges breach of fiduciary duty as executrix, count four alleges breach of fiduciary duty as trustee, count five alleges breach of fiduciary duty as power of attorney, count six alleges conversion, count seven alleges statutory theft, count eight alleges intentional interference with an inheritance, and count nine alleges unjust enrichment. The defendant argues that the court lacks subject matter jurisdiction over these claims because the estate remains open and pending in Probate Court. The plaintiff counters that jurisdiction over these claims does not reside exclusively with the Probate Court. In support of his position, the plaintiff relies upon the Superior Court decision in Daniels v. Herrscher, Superior Court, judicial district of New Haven, Docket No. CV 07 4025324 (December 10, 2007, Zoarski, J.T.R.).
In Daniels, the plaintiff brought an action against the defendant, his sister and the executrix of their mother's estate. The plaintiff, in a thirteen-count complaint, alleged various claims including undue influence, conversion, statutory and civil theft, unjust enrichment, actual or constructive fraud perpetrated against the decedent, actual or constructive fraud perpetrated against the plaintiff, action for declaratory judgment, and negligence for breach of duty, breach of fiduciary duty by a person in a confidential relationship, breach of fiduciary duty by an executor, violations of General Statutes § 42-110. The defendant moved to dismiss the complaint on the ground that the Superior Court lacked subject matter jurisdiction. In opposition, the plaintiff argued that the Superior Court had jurisdiction over the matter because the types of claims and relief requested go beyond that which the Probate Court was statutorily authorized to address and provide. See id.
The court explained: "[T]he Superior Court of this state as a court of law is a court of general jurisdiction. It has jurisdiction of all matters expressly committed to it and of all others cognizable by any law court of which the exclusive jurisdiction is not given to some other court. The fact that no other court has exclusive jurisdiction in any matter is sufficient to give the Superior Court jurisdiction over that matter . . . The Supreme Court has recognized that there are three types of actions in which the Superior Court does not exercise original jurisdiction: those involving the custody of a child not the issue of the marriage involved in a divorce, settlement of an executor's or administrator's account, and the question of due execution of a will." (Citation omitted; internal quotation marks omitted.) Id.
"In contrast to the Superior Court, [i]t is well established that courts of probate are statutory tribunals that have no common-law jurisdiction . . . Accordingly, [courts of probate] 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 . . . [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 . . . Ordinarily, therefore, whether a Probate Court has jurisdiction to enter a given order depends upon the interpretation of a statute . . . General Statutes § 45a-98 sets forth the general powers of the Probate Court, which includes in subdivision (3) the power to settle estates by determining title or rights to use and possession. General Statutes § 45a-98a(a) provides, however, that `[t]he Probate Court shall have jurisdiction under subdivision (3) . . . of subsection (a) of section 45a-98 only if (1) the matter in dispute is not pending in another court of competent jurisdiction and (2) the Probate Court does not decline jurisdiction.'" (Citation omitted; internal quotation marks omitted.) Id.
The Daniels court continued: "In addition to its express powers, Probate Courts have the power, where such is reasonably implied by statute, to make any lawful orders or decrees to carry into effect the power and jurisdiction conferred upon them by the laws of this state . . . Exercise of these implied powers must be necessary for the Probate Court to carry out its statutory duties and to exercise the jurisdiction expressly conferred . . . The test of necessity, therefore, is whether the existence of an implied power is necessary for the Probate Court to discharge a duty committed to it by statute." (Citations omitted; internal quotation marks omitted.) Id.
"Finally, although the Probate Court has no general equity jurisdiction . . . it is a court of equity as well as law . . . Similar to implied powers, probate courts possess only those equitable powers as are necessary for the performance of their statutory duties . . . The equity which the Probate Court administers must grow out of and be inseparably connected with the matter the court is acting upon . . . The situation, therefore, in which the Probate Court may exercise equitable jurisdiction must be one which arises within the framework of a matter already before it, and wherein the application of equity is but a necessary step in the direction of the final determination of the entire matter." (Citation omitted; internal quotation marks omitted.) Id.
In light of these principles, the court concluded: "Accordingly, the Probate Court only has original and exclusive jurisdiction over this action if it is a settlement of an executor's or administrator's account, or if the requested action and relief is within the implied or equitable powers of the Probate Court because it is necessary in order for the Probate Court to discharge its duty to settle the estate. Jurisdiction over this action does not reside exclusively with the Probate Court and it is properly before the Superior Court because the plaintiff seeks judicial action that is not necessary to settle the estate and relief that the Probate Court is not authorized to provide. The underlying issue, or `common thread' as it is referred to by the defendant, is whether particular finds and rights to payment legally belong to the decedent's estate for the benefit of the estate's creditors and beneficiaries. Although the resolution of this issue is a necessary step towards final settlement of the estate, a duty of the Probate Court, the bulk of the asserted causes of action and corresponding requests for relief are without the authority and powers of the Probate Court and are properly adjudicated by this Court. The plaintiff alleges fraudulent conduct, conversion, unjust enrichment, theft, negligence, and breach of fiduciary duty by the defendant in both her individual and representative capacities and seeks, inter alia, compensatory money damages, punitive money damages, declaratory relief, injunctive relief, and the imposition of a constructive trust. Resolution of these claims is not necessary for the Probate Court to discharge a duty committed to it by statute or a necessary step in the direction of the final determination of the entire matter before the Probate Court. Neither are they merely incidental to the matter before the Probate Court. Rather, they are independent equitable actions over which the Superior Court may exercise jurisdiction." (Internal quotation marks omitted.) Id.
"Even if the plaintiff's claims could be considered incidental to the settlement of the decedent's estate, the exercise of jurisdiction by the Superior Court is appropriate for two reasons. First, the plaintiff seeks monetary damages in addition to the return of funds and assets allegedly misappropriated by the defendant. A court of probate is unable to award damages . . . It would . . . be inappropriate to allow a court to entertain an action in which it is without the power to grant the relief requested . . . Second, courts have concluded that the Probate Court may not adjudicate complex legal questions which are subject to the broad jurisdiction of a general court of equity . . . [T]he Supreme Court reasoned that because there is often the need to engage in extensive fact-finding in these types of cases, the Probate Court lacks essential powers necessary to handle independent equitable actions." (Citations omitted; internal quotation marks omitted.) Id.
"Finally, allowing the Superior Court to exercise jurisdiction over each of these issues is the most efficient path to resolution. Even if the plaintiff were to file an objection to the inventory in the Probate Court and then appeal the Probate Court's decision to the Superior Court pursuant to General Statutes § 45a-186, the Superior Court would be unable to grant the monetary and other relief sought here because [t]he Superior Court, sitting in review of the Probate Court, may not exercise powers beyond those of the Probate Court . . . Therefore, the plaintiff would have to file an additional action to resolve the issues set forth in this action, followed by an additional appeal . . . [T]o allow such a course would be to favor possible delay and wasted action. The more direct route, a single hearing in a court of general jurisdiction, and a single appeal, both of which would be enforceable, is the appropriate and commendable route." (Citation omitted; internal quotation marks omitted.) Id.
In sum, the court stated: "For the foregoing reasons, when looking at the plaintiff's complaint in the light most favorable to avoiding dismissal, the plaintiff has pleaded causes of action beyond which the Probate Court is equipped to adjudicate and the plaintiff has requested relief that the Probate Court is not empowered to grant. Accordingly, the Superior Court has jurisdiction over this matter and the defendant's motion to dismiss the complaint for lack of subject matter jurisdiction is denied." Id.
In reliance on Daniels, the court in Meyer v. Peck, Superior Court, judicial district of Litchfield, Docket No. CV 07 4006664 (July 8, 2008, Marano, J.), denied a motion to dismiss based on lack of subject matter jurisdiction. The court stated: "Here, the plaintiffs are requesting an order setting aside the trust, an order setting aside the will, an accounting, restitution of funds to the estate of the decedent, and any other relief that the court may deem appropriate. Restitution is [a]n equitable remedy under which a person is restored to his or her original position prior to loss or injury, or placed in the position he or she would have been, had the breach not occurred . . . The authority of a Probate Court is not co-equal with that of the Superior Court when it is exercising its general equity powers . . . Therefore, because the plaintiff's claim involves a request for the imposition of an equitable remedy and does not fall within any of the three specific areas consigned to the Probate Court's original jurisdiction, the Superior Court may properly exercise jurisdiction." (Citations omitted; internal quotation marks omitted.) Id.
In the present case, the plaintiff seeks compensatory damages (his alleged share of several bank accounts), consequential damages, treble damages pursuant to § 52-564 (as to the statutory theft counts), punitive damages, attorneys fees and costs, "an accounting of Vachon's activities as attorney-in-fact for Albert C. Bausch and "such other and further legal and equitable relief as the court deems necessary and proper." Based on the decisions of the Superior Court in Daniels and Meyer, the court determines that the defendant is not entitled to dismissal of this action. The plaintiff's claims involve requests for the imposition of several remedies that do not fall within the Probate Court's original jurisdiction and as a result, the Superior Court may properly exercise jurisdiction.
Standing As to Counts Three Through Nine
The defendant additionally argues that the plaintiff lacks standing to bring his claims because they are based on joint accounts held by Bausch and the defendant. The plaintiff relies on § 36a-290(a), which, in pertinent part, states: "When a deposit account has been established at any bank . . . in the names of two or more natural persons and under such terms as to be paid to any one of them, or to the survivor or survivors of them, such account is deemed a joint account, and any part or all of the balance of such account, including any and all subsequent deposits or additions made thereto, may be paid to any of such persons during the lifetime of all of them or to the survivor or any of the survivors of such persons after the death of one or more of them . . ." She claims that pursuant to this section, she and her father are the owners of the account and therefore, the plaintiff lacks standing.
In Ardito v. Olinger, 65 Conn.App. 295, 296, 782 A.2d 698, cert. denied, 258 Conn. 942, 786 A.2d 429 (2001), the court addressed whether the plaintiff had standing to complain about the defendant's handling of their father's bank accounts. In that case, the court held that with regard to the accounts held jointly by the defendant and the decedent, pursuant to § 36a-290(a), the plaintiff was not an owner of the joint accounts and therefore, she could not be heard to complain about the conduct of the defendant in reference to them. See id., 298.
The decedent, however, created the other seven accounts, during his lifetime, as trust accounts with himself as trustee and the defendant as the beneficiary. Although the defendant, in his capacity as the beneficiary, could not withdraw money from those accounts, when acting pursuant to the power of attorney, he lawfully could withdraw funds from them. The plaintiff claimed that the defendant's withdrawal of funds from these accounts constituted a breach of a fiduciary duty. See id. The court rejected this argument, stating: "The fallacy in that claim is that the defendant owed no fiduciary duty to the plaintiff. Any fiduciary relationship that existed was between the defendant and the decedent. The plaintiff is a stranger to that relationship and has no standing to complain about an alleged breach of a fiduciary duty owed to the decedent. The plaintiff concedes that the nature of all of the decedent's bank accounts was such that, at his death, they all would have passed to the defendant and she would have inherited nothing. Accordingly, it is not clear what she is attempting to accomplish in this action. The decedent is now dead and the defendant has all the money that was in the accounts, a result that the plaintiff agrees is proper. Under no circumstances would there have been any inheritance for the plaintiff from any of the accounts." Id., 298-99.
As a result, the court concluded that "she has not made a colorable claim of any direct, or even indirect, injury that she has suffered, or is likely to suffer, from the defendant's actions . . . Because of her lack of a justiciable interest, the plaintiff lacked standing to bring this action . . . The court should not have proceeded to decide the case on the merits, but should have dismissed it for lack of subject matter jurisdiction." Id., 299-300.
Ardito is, however, distinguishable from the present case. Here, the plaintiff's complaint is drafted in such a manner that he makes reference to all of his father's accounts in counts three through nine, including those in which he, the defendant and their father are named as joint account holders. As such, the court is satisfied that the defendant is not entitled to dismissal of these claims due to the plaintiff's lack of standing.
Conclusion
For all of the foregoing reasons, the defendant's motion to dismiss is hereby denied.