Opinion
DBDCV186028048S
01-22-2019
Sheryl BUCKINGHAM et al. v. PROBATE APPEAL, Probate District of Housatonic
UNPUBLISHED OPINION
OPINION
Krumeich, J.
This is an appeal from a decree entered by the Probate Court, District of Housatonic, that it was without jurisdiction to entertain any motion to contest the last will and testament of Steve Liscinsky, which had been admitted to probate ("the Will"), or to order discovery of medical information relating to the testator’s mental capacity to make the Will because the time to appeal admission of the Will to probate under C.G.S. § 45a-186 or to seek reconsideration, modification or revocation of the decree admitting the Will to probate under C.G.S. § 45a-128 had expired and thus the decree admitting the Will to probate was res judicata. For the reasons stated below, the motion to dismiss the appeal for lack of subject matter jurisdiction is granted.
Standards for Deciding a Motion to Dismiss
" ‘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 ...’" Weiner v. Clinton, 100 Conn.App. 753, 756-57 (2007), quoting Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).
"A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).
"In ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial court ‘must consider the allegations of the complaint in their most favorable light ... including those facts necessarily implied from the allegations ...’ ... A trial court considering a motion to dismiss may, however, ‘encounter different situations, depending on the status of the record in the case ...’ [If] the complaint is supplemented by undisputed facts ... the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ... Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ... Conversely, ‘where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts ... Likewise, if the question of jurisdiction is intertwined with the merits of the case, a court cannot resolve the jurisdictional question without a hearing to evaluate those merits ... An evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties ... The trial court ‘may [also] in its discretion choose to postpone resolution of the jurisdictional question until the parties complete further discovery or, if necessary, a full trial on the merits has occurred.’" Giannoni v. Commissioner of Transportation, 322 Conn. 344, 349-50 (2016) (citations omitted).
The Court Lacks Subject Matter Jurisdiction
The Probate Court concluded it lacked jurisdiction to grant discovery to contest the Will because plaintiffs had not challenged its decree admitting the Will to probate and their time to do so had expired so the decree admitting the Will was a final judgment entitled to res judicata.
In Bassford v. Bassford, 180 Conn.App. 331, 337-38 (2018), the Appellate Court discussed the requirement of standing based on aggrievement for subject matter jurisdiction to appeal a decree of a probate court:
"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.’ ... The trial court does not have ‘subject matter jurisdiction to hear an appeal from probate unless the person seeking to be heard has standing ... In order for an appellant to have standing to appeal from an order or decree of the Probate Court, the appellant must be aggrieved by the court’s decision. General Statutes § 45a-186 ... Aggrievement falls within two categories, classical and statutory ... Classical aggrievement exists where there is a possibility, as distinguished from a certainty, that a Probate Court decision has adversely affected a legally protected interest of the appellant in the estate ... Statutory aggrievement exists by legislative fiat which grants an appellant standing by virtue of particular legislation, rather than by judicial analysis of the particular facts of the case ... It merely requires a claim of injury to an interest that is protected by statute.’" (Citations omitted).
Aggrievement is a practical and functional requirement for jurisdiction over a probate appeal that requires a showing of possibility that some legally protected interest in the estate of the plaintiff has been adversely affected by the decree on appeal. See In re Baskin’s Appeal, 194 Conn. 635, 637-38 (1984):
" ‘Because the right to appeal from the decision of a Probate Court is statutorily conferred ..., the absence of aggrievement, as required by ... statute, is a defect that deprives the Superior Court of jurisdiction to entertain the appeal’ ... ‘[T]he existence of aggrievement depends upon "whether there is a possibility, as distinguished from a certainty, that some legally protected interest which [an appellant] has in the estate has been adversely affected." ’ ... The concept of aggrievement depends only on the existence of a cause of action upon which a party may rest his plea for relief. ‘The issue of whether [a party] was aggrieved ... by the actions of the Probate Court is to be distinguished from the question of whether, on a review of the merits, it will prevail. To examine the present issue the two parts of aggrievement need to be considered: (1) the nature of the appellant’s interest, and (2) the adverse effect, if any, of the Probate Court’s decision on that interest.’ ... If the plaintiff had a cognizable cause of action in the Probate Court, he would be aggrieved by an order of that court denying him relief."
Plaintiffs assert standing to contest the Will because they claim the Will was the product of undue influence while the testator lacked mental capacity and its terms of distribution materially diminished their share of the estate from a prior will. As Bassford makes clear, 180 Conn.App. at 338, that plaintiffs would have received a different and greater share of the estate under a prior will would be sufficient to show classic aggrievement to appeal the decree admitting the Will to probate.
However, plaintiffs did not appeal the decree that admitted the Will to probate on August 24, 2016. Nor did plaintiffs move for reconsideration, modification or revocation of that decree. This is an appeal from the Probate Court’s decree on June 28, 2018 holding it was without jurisdiction to entertain the plaintiffs’ request for disclosure of medical information relating to the notice of intention to contest the Will filed on January 9, 2017, amended on January 11, 2017.
An appeal from the admission of the Will to probate would have had to have been filed by September 26, 2016 to comply with the forty-five-day appeal period in C.G.S. § 45a-186(a). Any motion for reconsideration, modification or revocation of the decree admitting the Will to probate would have had to have been filed by December 26, 2016 to comply with the 120-day period for filing such motion. The January 9, 2017 notice of intention to contest the Will, even if treated as a motion for reconsideration of admission of the Will or to revoke the prior decree, would not be timely.
In Silverstein v. Camposeo, 122 Conn.App. 338, 343 (2010), the Appellate Court held that plaintiff had the burden to perfect the probate appeal within the then thirty-day time period for appeal to the superior court under C.G.S. §§ 45a-186 and 45a-187 and failed to do so because, although a motion to appeal was timely filed in the probate court, plaintiff failed to pay the $ 50.00 filing fee: "[t]he statutory right of appeal afforded the plaintiff was not perfected absent his strict compliance with all statutory requirements."
Because there was no timely appeal or motion for reconsideration or revocation, the decree admitting the Will to probate became a final judgment and bar to relitigation of the admission of the Will under the res judicata doctrine.
"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, including those rendered upon the resignation of an executor, are final judgments for the purpose of the doctrine of res judicata." Gaynor v. Payne, 261 Conn. 585, 595-96 (2002).
Connecticut General Statutes Section 45a-24 also recognizes the finality of probate court decrees: "[e]very order, judgment or decree of a court of probate made by a judge who is disqualified shall be valid unless an appeal is taken as hereinafter specified. All orders, judgments and decrees of courts of probate, rendered after notice and from which no appeal is taken, shall be conclusive and shall be entitled to full faith, credit and validity and shall not be subject to collateral attack, except for fraud."
Plaintiffs have not asserted the decree that admitted the Will to probate was obtained by fraud. Plaintiffs assert that they were not aware that the Will altered the distribution of the estate from a prior will they had seen and that was the reason they did not object to its admission. Plaintiffs allege that the Executor fraudulently concealed the provisions of the Will and asserted they received no copy of the court’s notices and decrees. The evidence discloses that plaintiffs were sent notice of the petition to admit the Will to probate, the hearing request deadline, the right to object to admission of the Will, the decree admitting the Will to probate and the right of appeal. Although plaintiffs allege they never received the decree admitting the Will, the above notices were sent to plaintiffs’ mailing addresses and no evidence was submitted of lack of notice. Plaintiffs contend they never received "proper" notice because no copy of the Will was provided to them. Plaintiffs have not claimed the Will was not filed or that the files of the probate court were not available for their review, and they failed to submit any authority that it was incumbent on petitioner to provide them with a copy of the Will prior to its admission. Without a duty to disclose the terms of the Will to plaintiffs, any omission to provide plaintiffs with a copy of the Will would not constitute fraud. See generally Egan v. Hudson Nut Products, 142 Conn. 344, 347-48 (1955). The undisputed evidence confirms plaintiffs found out about the changed terms of the Will and engaged counsel, who appeared on their behalf in the probate court on November 10, 2016, within the 120-day period for moving to reconsider or revoke the decree admitting the Will to probate. No such motion was filed and the decree admitting the Will became a final judgment before the notice of intention to contest the Will was filed on January 9, 2017. Compare, Vietor-Haight v. BNY Mellon, NA, 2018 WL 2137777 *3 (Conn.Super. 2018) (Jacobs, J.) (res judicata after decree became final when probate appeal withdrawn). Once the decree admitting the Will to probate became final, plaintiffs lost any right they had to urge admission of a prior will because they were no longer able to comply with the strict statutory requirements to set aside the Will’s admission and thus lacked standing to contest the Will or to seek discovery as to the testator’s mental capacity. See Silverstein, 122 Conn.App. at 343. The notice and discovery requests appear to be an end run around the statutory procedures for contesting admission of a will to probate, which cannot resuscitate plaintiffs’ lost rights to contest admission of the Will.