Opinion
HHDCV186095422S
01-29-2020
Suzann L. Beckett v. Marilyn Every
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Noble, Cesar A., J.
MEMORANDUM OF DECISION RE MOTION TO DISMISS, NO. 113
CESAR A. NOBLE, J.
The Superior Court enjoys only a limited, statutorily prescribed, authority to entertain appeals from decisions of the Probate Court. General Statutes § 45a-186 imposes a thirty-day limitation for the filing of an appeal from certain probate matters. The issue presented by the motion of the plaintiff, Suzan Beckett, to dismiss the counterclaim of the defendant, Marilyn Every, requires the court to resolve whether it has jurisdiction over the counterclaim, which was filed outside of the thirty-day limitation. Because the counterclaim is not only outside the mandatory appeals period, but also raises issues that are not identical to the issue raised by the original appeal, the court holds that it does not have jurisdiction over the counterclaim and it is dismissed.
The portion of § 45a-186 in effect at the time relevant to the present action provided that "an appeal from an order, denial or decree [of the Probate Court] shall be filed on or before the thirtieth day after the date on which the Probate Court sent the order, denial or decree." General Statutes (Rev. to 2016) § 45a-186(b). The parties do not dispute that this is the applicable statutory provision.
The following facts and procedural history are relevant to this decision. Beckett, an attorney and friend of Every, was retained by Every to perform estate management. In 2012, Beckett created the Ahoskie Irrevocable Trust (Trust) for which Every was the Settlor. Beckett was appointed Trust Investment Advisor and Trust Distribution Advisor pursuant to which Beckett functioned essentially as the trustee of the Trust. Beckett charged a flat fee of $50,000 to create the Trust and over the next four years, using funds from the Trust, paid herself approximately $38,000 in additional fees for work she claimed to have performed for the Trust, Trust-related entities and Every. In March of 2016, Every removed Beckett from her responsibilities and in July of 2016, petitioned the Probate Court pursuant to General Statutes § 45a-175 to order Beckett to file an accounting. The court, Eagan, J., assumed jurisdiction over the Trust and ordered Beckett to file an accounting. In April of 2017, Beckett submitted her third and final revised accounting to which Every objected. The issues raised by Every involved a challenge to the fees charged by Beckett in excess of the original $50,000, claimed accounting discrepancies, bookkeeping errors and loss on sales or redemptions of stock totaling $2574.58, an unrealized loss to the Trust due to claimed mismanagement of funds by Beckett in the amount of $25,188.36 and $75,000 in legal fees and expenses. Every incurred to challenge "claimed misdeeds and wrongdoings" by Beckett. Beckett responded in part by asserting that Every failed to submit expert testimony regarding the reasonableness of the fees or that Beckett deviated from the applicable standards of care.
Following a hearing, the Probate Court rendered a decision on April 30, 2018, which was mailed to the parties on May 4, 2019. The court in its decision examined in detail the disputed fees. It made findings that certain fees were improperly charged, some unrelated to the Trust and others were not proven by Beckett to have been reasonable. The court noted the lack of written fee agreements for a number of fees as well as lack of billing statements or time records to support claimed activity and ordered that $35,508.36 in fees be returned to Every. The court declined to order Beckett to repay the Trust for the unrealized loss due to its interpretation of the exculpatory provision in the Trust. These same exculpatory provisions, and the court’s lack of findings of "bad faith, willful, misconduct or gross negligence" informed the court’s decision not to award Every a "surcharge" consisting of the attorneys fees incurred by her as a consequence of Beckett’s claimed conduct.
On June 1, 2018, Beckett filed a timely appeal from the decision of the Probate Court, which was sent on May 4, 2018. The issues raised in her complaint were limited to the court’s order to return the sum of $33,508.36 in fees to the Trust. On August 12, 2019, Every filed an Answer, Special Defenses and Counterclaim. The latter claimed aggrievement as a consequence of the Probate Court’s failure to award her unrealized losses in the amount of $25,188.36 and attorneys fees of $75,000 as a surcharge. Beckett thereafter filed the present motion to dismiss. In her motion, Beckett asserts that the court lacks subject matter jurisdiction over the counterclaim because it is of the character of an untimely filed appeal from the Probate Court.
Beckett’s complaint does not appear to appeal the award of $2,000 for a category of fees referred to as "Excess Distribution Trustee Fees for 2013."
"When considering an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate. In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common law jurisdiction, but of a Probate Court." (Internal quotation marks omitted.) Bassford v. Bassford, 180 Conn.App. 331, 337, 183 A.3d 680 (2018). Every, in her objection to the motion to dismiss, relies extensively upon Southport Congregational Church- United Church of Christ v. Hadley, 152 Conn.App. 282, 294-96, 98 A.3d 99 (2014), rev’d on other grounds, 320 Conn. 103, 128 A.3d 478 (2016) for the proposition that a counterclaim filed outside of the 30-day parameter constitutes a cross appeal over which the Superior Court has jurisdiction if "the counterclaim [is] within the scope of the issues presented in the original [timely filed] probate appeal [and] it raises the very same issue as that appeal." See id., 296. In Hadley, the Appellate Court found significant that the issue presented by the counterclaim was whether the doctrine of "equitable conversion" applied to the sale of the decedent’s property by the coexecutors of the decedent’s estate. The sole issue to be decided by the court on the original timely filed appeal and the counterclaim was whether the coexecutors had the authority to sell the property at issue with the pleadings "differing only in the result sought by each party." See id., 295. The reliance of Every on Hadley is misplaced.
The proposition relied upon by Every, that filing a counterclaim after the thirty-day period mandated by § 45a-186 does not disturb the court’s subject matter jurisdiction if the counterclaim raises identical issues, was only addressed by the court in dicta. The court commented in a footnote that "[a]t oral argument before this court, the church disputed the notion that the counterclaim could be construed as a cross appeal on the ground that it was not filed within the thirty days prescribed by [General Statutes § 45a-186]. It is well settled, however, that when an appeal is filed after the limitations period has terminated, the appeal is rendered voidable, but not void." Southport Congregational Church- United Church of Christ v. Hadley, supra, 152 Conn.App. 295 n.9. Because the original appellant never raised a timeliness challenge before the Superior Court, the Appellate Court held that such a claim was waived.
This proposition may be traced to Orcutt’s Appeal From Probate, 61 Conn. 378, 384-85, 24 A. 276 (1892) (statute requiring all probate appeals, by persons not inhabitants of this state, not present when the decree was passed, and without legal notice to be present, be taken within twelve months after the passage of such decree, is in the nature of a statute of limitations because it "was intended primarily and principally to limit the right of the appellant, and to protect the rights of the appellee, and not to limit directly and absolutely the power of the probate court to allow an appeal after the time has passed, or to affect the jurisdiction of the superior court over an appeal"). Although Orcutt’s Appeal has been declined to be extended, the holding of Orcutt has not been explicitly abrogated. See Stec v. Raymark Industries, Inc., 299 Conn. 346, 367, 10 A.3d 1, 15 (2010) (declining to extend reasoning to workers’ compensation appeals).
The appellate court, however, has also articulated a different view towards the time limitations that attach to probate appeals. In In re Knott, 190 Conn.App. 56, 209 A.3d 690 (2019), the court stated expressly that "[f]ailure to comply with the relevant time limit set forth in § 45a-186(a) deprives the Superior Court of subject matter jurisdiction and renders such an untimely appeal subject to dismissal." (Internal quotation marks omitted.) In re Knott, 190 Conn.App. 56, 62, 209 A.3d 690 (2019) citing Corneroli v. D’Amico, 116 Conn.App. 59, 67, 975 A.2d 107, cert. denied, 293 Conn. 928, 980 A.2d 909 (2009) ("[f]ailure to [timely commence an appeal within thirty days] deprives the Superior Court of subject matter jurisdiction and renders such an untimely appeal subject to dismissal"). Paradoxically, both Hadley and Corneroli, which held that the thirty-day period mandated for appeal from the probate court pursuant to the newly amended § 45a-186 eliminated the need to initiate appeal with the Probate Court and that an untimely appeal deprived the Superior Court of subject matter jurisdiction, both referenced Heussner v. Hayes, 289 Conn. 795, 961 A.2d 365 (2008). In Heussner v. Hayes, supra, 289 Conn. 808, the Supreme Court reversed the trial court’s dismissal of two probate court appeals for lack of subject matter jurisdiction, due to process not being returned within two months of its service as specified by mesne process requirements, because "jurisdiction attached when the appeals properly were taken and allowed."
It is noteworthy that the mesne process statutes at issue in Heussner, General Statutes § § 52-46a and 52-48, implicate personal rather than subject matter jurisdiction, making jurisdiction voidable upon a timely motion but not void. See Adler v. Rosenthal, 163 Conn.App. 663, 679-83, 134 A.3d 717 (2016).
This court need not resolve this split of authority for two reasons. The first is that even if the thirty-day limitation present in § 45a-186 implicates only personal jurisdiction rendering defects voidable if a challenge is properly raised, a proper challenge was asserted by Beckett in the present action by the filing of a motion to dismiss. Secondly, again presuming without deciding that § 45a-186 affects only personal jurisdiction, the issues raised by Every’s counterclaim are not identical to those raised in Beckett’s complaint thus rendering it outside of the confines of the asserted application of Hadley. The rationale expressed by the Appellate Court in Hadley for considering the untimely counterclaim a cross appeal was that it was not only "within the scope of the issues presented in the original probate appeal, it raised the very same issue as that appeal." Hadley, supra, 152 Conn.App. 296. The same identity of issues in the counterclaim as the complaint cannot be found in the present case. Beckett’s appeal is from the order of the Probate Court requiring her to return $35,508.36 in fees she had paid herself for claimed legal work. The appeal advanced in the counterclaim, however, raises different issues, those of the failure of the Probate Court to award Every $25,188.36 for mismanagement of funds and $75,000 in legal fees and expenses. This appeal involves different questions of fact and law and, therefore, is not "identical" to the issue raised on appeal by Beckett. It does not, accordingly, fall within the reach of the Appellate Court’s decision in Hadley.
Query how the view that the thirty-day appeal period, now codified in § 46a-186(b) implicates personal rather than subject matter jurisdiction, would accommodate the Practice Book § 10-30(b) mandate that a motion to dismiss must be filed within thirty days of the filing of an appearance. A conundrum exists because a plaintiff against whom a counterclaim is filed has already appeared. It may well be that counterclaims, which are permitted by Practice Book § 10-10 only "in any actions for legal or equitable relief," are not appropriate in appeals from probate. See Zanoni v. Pikor, Superior Court, judicial district of Hartford, Docket No. CV-93-520372-S (August 22, 1994, Corradino, J.).
One final issue remains to be addressed. Every asserts the failure of Beckett to comply with Practice Book § 10-76(a). Practice Book § 10-76(a) provides: "Unless otherwise ordered, in all appeals from probate the appellant shall file reasons of appeal, which upon motion shall be made reasonably specific, within ten days after the return day; and pleadings shall thereafter follow in analogy to civil actions." "The reasons of appeal serve essentially the same functions in defining issues and limiting evidence as does the complaint in any civil matter." Flor v. Pohl, 95 Conn.App. 555, 560-61, 899 A.2d 46 (2006). Every reasons that the failure of Beckett to have filed reasons of appeal, a fact evident from the record, puts all of the Probate Court’s rulings in issue.
This argument ignores the fact that Beckett has already articulated "the reasons of appeal" in her complaint, specifically in 20 through 24, in which she identified six elements of appeal pertaining to the return of legal fees related to explicitly enumerated areas of claimed legal work. The purpose of filing "reasons of appeal" is thus satisfied. Accordingly, where an appellant from a decree or order of the Probate Court has provided "reasons of appeal" in the complaint the filing of formal and separate "reasons of appeal" pursuant to § 10-76 is merely a technical superfluity and does not open the door to an unlimited appeal.
General Statutes § 45a-186(c), as amended by No. 19-47 of the 2019 Public Acts, effective June 26, 2019, provides that "[t]he complaint shall state the reasons for the appeal."
For the foregoing reasons, the counterclaim is dismissed.