Opinion
HHBCV175018761S
11-06-2019
Michael Ciarcia v. Patricia Bordiere, Executrix
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Frazzini, Stephen F., J.T.R.
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#138)
STEPHEN F. FRAZZINI JUDGE TRIAL REFEREE
This case is a probate appeal from a decision in the Probate Court for the Berlin district on an application filed by the defendant to open her deceased husband’s estate in order to file an amended inventory listing a judgment obtained by her husband against the plaintiff and to file a judgment lien on real property owned by the plaintiff. The plaintiff filed an objection in the Probate Court to that motion. The Probate Court, Clebowicz, J., denied that objection and granted the motion to open the estate on June 12, 2017.
On July 7, 2017, the plaintiff filed this appeal. The defendant has now filed the pending motion to dismiss the appeal for lack of subject matter jurisdiction. The gravamen of the motion to dismiss is that the plaintiff is not aggrieved and "has no standing to file this appeal." Motion to Dismiss, p. 1. Questions of aggrievement and standing are properly raised by a motion to dismiss, as the plaintiff himself recently noted in objecting to the defendant’s request to revise to raise lack of jurisdiction as a special defense. For the reasons stated below, the motion is granted.
"[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.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). The grounds for such a motion are contained in Practice Book § 10-30(a), which provides in relevant part that: "A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter ..."
"Such issue of the lack of jurisdiction of the court ‘shall be’ raised by a motion to dismiss. See Practice book section 10-30." Plaintiff’s Objection to the Defendant’s Request for Leave of Court to File Amended Answer and Special Defense and the Proposed Additional Special Defense to the Plaintiff’s Complaint Dated September 26, 2019, p. 1.
The case was scheduled for trial on October 11, 2019. After the defendant filed the pending motion challenging subject matter jurisdiction, however, the court was obliged to address that question first. See Fennelly v. Norton, 103 Conn.App. 125, 136-37, 931 A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936 (2007) (stating as follows: "[i]t is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court ... [O]nce raised, either by a party or by the court itself, the question [of subject matter jurisdiction] must be answered before the court may decide the case." [Citations omitted; emphasis omitted; internal quotation marks omitted] ). The court thus continued the trial in order to address the pending question of subject matter jurisdiction. Both parties have submitted memoranda of law on the matter. The plaintiff and counsel for the defendant appeared for a hearing on the motion on the date originally scheduled for trial.
Under General Statutes § 45a-186, "any person aggrieved" by a decision of the Probate Court may bring an appeal to the Superior Court. It has long been the law in Connecticut that lack of aggrievement deprives the court of subject matter jurisdiction in a probate appeal.
General Statutes § 45a-186 provides in relevant part: "[a]ny person aggrieved by any order, denial or decree of a Probate Court may appeal therefrom to the Superior Court."
From a very early period in the history of our state provision has been made by law for appeals in probate causes. The statutes as revised in 1750 embodied the law upon this subject as it had existed for at least fifty years before ... In substance, the provisions of our law relating to appeals from probate have, from the earliest times, remained the same as they are to-day. A right of appeal is given to "any person aggrieved," from any "order, denial, or decree of a court of probate in any matter, unless where it is otherwise specially provided by law." Since 1750, at least, such appeal was to be taken to the Superior Court. This apparently absolute right of appeal is limited however by certain conditions. It exists only in favor of a party "aggrieved" in a matter not otherwise specially provided for by law ... If the party attempting to appeal is not a party "aggrieved," within the meaning of the statute, he cannot appeal. The cause is, as to him, non-appealable.(Citations omitted.) Orcutt’s Appeal from Probate, 61 Conn. 378, 382-83, 24 A. 276 (1892). The issue of aggrievement implicates a party’s standing before the court: "Aggrievement as a concept of standing is a practical and functional one designed to assure that only those with a genuine and legitimate interest can appeal an order of the Probate Court." Gaucher v. Estate of Camp, 167 Conn. 396, 400, 355 A.2d 303 (1974).
The law on "standing and its aggrievement component" has been stated many times:
Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented ... These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy ... provides the requisite assurance of concrete adverseness and diligent advocacy ... The requirement of directness between the injuries claimed by the plaintiff and the conduct of the defendant also is expressed, in our standing jurisprudence, by the focus on whether the plaintiff is the proper party to assert the claim at issue ...
Two broad yet distinct categories of aggrievement exist, classical and statutory ... Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share ... Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest ...
Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.(Internal quotation marks omitted.) Andross v. West Hartford, 285 Conn. 309, 322, 939 A.2d 1146 (2008). Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest. Goldfisher v. Connecticut Siting Council, 95 Conn.App. 193, 197, 895 A.2d 286 (2006).
[A]s to the quality and quantum of evidence required to establish aggrievement, an appellant need not establish his or her interest and harm with certainty, but rather, may satisfy the requirement of aggrievement by credible proof that the subject activity has resulted in the possibility of harm to his or her specific personal and legal interest ... Although one may establish aggrievement by establishing the possibility of harm, mere speculation that harm may ensue is not an adequate basis for finding aggrievement.(Citations omitted.) Id., 197-98.
In the present case, the plaintiff does not appear to claim statutory aggrievement. Any standing, therefore, must rest on a claim of classical aggrievement, a question of fact on which he bears the burden of proof. See Bethlehem Christian Fellowship, Inc. v. Planning & Zoning Commission, 58 Conn.App. 441, 444, 755 A.2d 249 (2000) (stating as follows: "The determination of aggrievement presents a question of fact for the trial court and a plaintiff has the burden of proving that fact" [citations omitted] ). "The factors involved in whether classical aggrievement exists are tempered by the subject matter of the litigation. Classical aggrievement usually requires that the party claiming aggrievement has a direct pecuniary interest in the outcome of the litigation ... Because of the types of issues often presented in probate appeals, however, the concept of aggrievement in such cases has evolved into a broader standard than that requiring a showing of a direct pecuniary interest." (Citation omitted.) Buchholz’s Appeal From Probate, 9 Conn.App. 413, 415, 519 A.2d 615 (1987). "A two-prong analysis is used in probate appeals to determine whether a party is classically aggrieved by a denial, decree or order of a court of probate as provided by General Statutes § 45-288.... That analysis includes a consideration of (1) the nature of the appellant’s interest, and (2) the adverse effect, if any, of the Probate Court’s decision on that interest." (Citation omitted; internal quotation marks omitted.) Id., 416. The determination of whether the plaintiff has standing based on classical aggrievement thus depends on whether he has asserted the "possibility, as distinguished from a certainty, that some legally protected interest which he has in the estate has been adversely affected." O’Leary v. McGuinness, 140 Conn. 80, 83, 98 A.2d 660 (1953). "Moreover, it must appear that the interest which is adversely affected is a direct interest in the subject matter of the decree from which the appeal is taken." Merrimac Associates, Inc. v. Disesa, 180 Conn. 511, 516-17, 429 A.2d 967 (1980).
The plaintiff’s complaint instead recites three reasons why he claims to be aggrieved:
Michael Ciarcia is aggrieved by the Probate Court decree of June 12, 2017 because of the following reasons:
(a) The decree either expressly or by implication holds that the alleged judgment lien is a "newly discovered" asset or an "asset" of the estate, without examining the merits or legality of that judgment lien;
(b) The decree either expressly or by implication interferes with the jurisdiction of the superior court under cases, already being litigated such as the Bordiere v. Ciarcia case, CV 08-4016218-S and, Ciarcia v. Denigris and Patricia Bordeire, CV 17 5018453-S case . In fact, when the decree was published there is already a third civil case that litigates those facts and issues, and that case is Patricia Bordiere v Michael Ciarcia, claiming foreclosure of the judgment lien; CV-17-6037924-S.
(c) Michael Ciarcia is materially aggrieved by the probate decree because the decree by allowing the opening of the estate, and pursuing the judgment lien, by implication, but totally incorrectly and illegally, gives some degree of legitimacy to the judgment lien, thus affecting, indirectly the civil litigation already pending in the Superior Court.(Underlining in original.) Plaintiff’s Complaint, p. 3. From these assertions, it is evident that the bases of both his appeal and his claims of aggrievement lie in his argument about the validity of a judgment lien against property that he owns and has been the subject of other cases in this judicial district. He repeated that emphasis in his oral argument during the hearing on the motion to dismiss. Measured against the standards for classical aggrievement, however, none of these assertions provide any basis for finding aggrievement or standing in the present case.
See the reference in plaintiff’s complaint to three other civil actions filed in this judicial district.
During oral argument on the motion to dismiss, when asked to explain why he claimed to be aggrieved, the defendant stated the following:
The essence of the plaintiff’s argument is that a judgment against him that the decedent obtained during the decedent’s lifetime lapsed upon the decedent’s death and the failure of the estate administratrix to list the judgment on the original inventory filed in the Probate Court. He thus asserts that, by allowing the estate to be opened and an amended inventory to be filed, the Probate Court revived an "abated" judgment and thereby injuriously affected the plaintiff’s pecuniary interests in the real property on which the judgment lien was placed.
Thus, two headings in a memorandum of law he filed in connection with a motion in limine in this case asserted as follows:
None of the plaintiff’s claims of aggrievement made here, however, show that he had "any legally protected interest" in the decedent’s estate itself that has been adversely affected. The first and third claims of aggrievement that he recited in his complaint challenge "the merits or legality of that judgment lien," but "[t]he question of [aggrievement] does not involve an inquiry into the merits of the case." Appeal from Probate of Bencivenga, 30 Conn.App. 334, 337, 620 A.2d 195 (1993), aff’d, 228 Conn. 439, 636 A.2d 832 (1994). His second claim asserts that the Probate Court’s exercise of its limited jurisdiction to ascertain items belonging to the estate interferes with other civil cases. All of these assertions incorrectly assume that the Probate Court’s decree somehow affects the validity of the judgment lien or the outcome of other cases in the Superior Court. Both propositions, however, are soundly refuted by Cook v. Town of Morris, 66 Conn. 137, 33 A. 594 (1895), and its progeny. In that case, as later recounted by our Supreme Court in State v. Goggin, 208 Conn. 606, 613, 546 A.2d 250 (1988),
the plaintiff conservator brought an action against the defendant town of Morris to recover for support furnished to his ward alleging that the ward was a pauper. The plaintiff, to establish his ward’s indigence, offered in evidence a certified copy of his account as conservator in which it appeared that the ward’s estate had been expended.
The account had been accepted and approved by the Probate Court and no appeal had been taken from that decree.
On appeal, the plaintiff claimed "that the court erred in overruling his claim that the probate record was conclusive." Cook v. Town of Morris, supra, 66 Conn. 140. Although rejecting that claim on grounds not relevant here, the court also stated that
the whole matter of the possession and ownership of property by [the ward] was open to the defendant, notwithstanding said accounting. The town of Morris was not a party to the proceedings in the Court of Probate. At that time the town had no interest in the matter so that it could have been made a party to the proceedings in the Court of Probate, or could have appealed from the decree, even if it had wished to do so. A judgment never binds those who are not parties or privies.Id., 140-41. Cases since Cook have thus repeatedly held that the Probate Court does not determine the legitimacy of debts owed to or by a decedent’s estate.
In State v. Goggin, supra, 208 Conn. 614, the lack of privity between the town and the parties in Cook v. Town of Morris was held to be a basis for rejecting a claim that a probate decree approving transfer of a life estate vested in an institutionalized person precluded the state from challenging the transfer as a fraudulent conveyance for purposes of qualifying for Medicaid benefits. As our Supreme Court recently noted in Valliere v. Commissioner of Social Services, 328 Conn. 294, 178 A.3d 346 (2018), however, changes in state and federal law now allow the state to receive notice and participate in probate proceedings for a spousal support order, thereby obviating the privity problem noted in Cook and Goggin.
In Searle v. Crampton, 118 Conn. 42, 170 A. 480 (1934), for example, a bank receiver brought an action to recover for a promissory note, but the court allowed a set-off for funds held by the bank as security for that note. The receiver argued that the defendant’s report to the Probate Court that the note was property of his father’s estate barred the defendant from asserting those funds as a set-off to his own debt. The court rejected that argument, and, citing Cook, further held as follows:
The inventory of an estate may properly contain any property which may be claimed to have belonged to the deceased when the circumstances are such as to make the matter of his title doubtful, leaving the question of title to be litigated in an ordinary action at law. ... The acceptance of the inventory by the court of probate was not, therefore, an adjudication as to the title of the certificate of deposit. Nor could the decrees of that court accepting the account of the administratrix and the mutual distribution, conclusively determine the title to property included therein as between the defendant and the plaintiff, who was not a party to the probate proceedings.(Citations omitted.) Id., 46.
The court described the factual context as follows:
Similarly, in Lynch v. Skelly, 138 Conn. 376, 85 A.2d 251 (1951), defendants in an action to collect funds that they allegedly owed to the decedent claimed that the failure of the administrator to file an inventory or to list a chose in action against them on an inventory precluded the estate from bringing the civil action. The court rejected that claim, holding that "the filing of an inventory is not a condition precedent to an administrator’s right to enforce his claim against a person indebted to his decedent on account of a chose in action." Id., 381. In language particularly apropos to the current matter, the court noted as follows:
The requirement for an inventory is, therefore, for the protection of those interested in the estate as distributees or creditors ... It is not intended for the protection of those, like the defendants, against whom the estate has claims. That this is so is abundantly clear from the fact that the statute contemplates that objection to the acceptance of the inventory by the Probate Court may be made only by the tax commissioner or "any party interested." Inasmuch as it is not within the power of the Probate Court to determine the validity of a claim which is an asset of a decedent’s estate, no alleged debtor of an estate can be held to have any interest in whether the claim against him is inventoried. He is not adversely affected by the inventorying of the claim against him ... It is not the purpose of the statute to vest in such debtor any interest in the inventorying of the claim against him. There is nothing, therefore, in either the express words or the implications of the statute which requires that a chose in action belonging to a decedent be inventoried by the administrator of his estate before an action thereon is instituted.(Citations omitted; emphasis added.) Id., 378-79. The court’s explanation of its ruling elucidates the present case as well:
the legal title to the personal property of a decedent, including choses in action, vests in his administrator or executor ... Such vesting occurs in the case of intestate estates not later than the time when the administrator is appointed and qualifies ... [A]t the time this action was instituted the plaintiff as administrator had the legal title to the chose in action sued upon. The right to sue thereon was complete in him. If it be assumed that the cause of action which the decedent had against the defendants was good in substance, it remained a valid claim against them after his death. Their liability thereon continued whether the claim was inventoried or not. That substantive liability could be in no way affected by the inventorying of or the failure to inventory the chose in action. In so far as substance is concerned, therefore, the situation is one in which the defendants were indebted on the chose in action and the plaintiff held the title to it. Under such circumstances he clearly was entitled to sue upon it whether he had inventoried it or not.(Citations omitted.) Id., 379-80.
The case of Bridgeport v. Steiber, 143 Conn. 720, 126 A.2d 823 (1956), illustrates this principle. There, plaintiffs challenged a Probate Court decree appointing an administrator of the estate of a presumptive decedent who had a claim against them for personal injuries sustained as a result of their alleged fault. Their claim of aggrievement was that such an appointment would allow them to be sued, but the court held that they had no legally protected interest in either the estate or "any interest ... directly affected adversely by the decree appointing the administrator." Id., 723.
The Supreme Court quoted the plaintiffs’ claim of aggrievement as follows: "The [plaintiffs] are aggrieved by [the] order and decree [of the Probate Court] because the appointment of the Administrator herein was made for the sole purpose of pursuing the presumed decedent’s causes of action against them and said appointment has resulted in subjecting the subscribers to suits for the claimed injuries ... But for said order and decree the suits involving the subscribers would be impossible and, therefore, the subscribers have direct pecuniary interest in said order and decree ..." (Internal quotation marks omitted.) Bridgeport v. Steiber, supra, 143 Conn. 721.
The decree does not adjudicate any issue against them. It does not determine as against them that they are liable for damages to the estate. That question will have to be decided in actions brought against them by the administrator. Their right to make their defenses in those actions is in no way affected by the appointment of the administrator. The contention of the plaintiffs is that the interest which was adversely affected by the decree appealed from was their right to be protected from having claims made against them in court. The place for them to assert that right to protection is in the court in which they will be sued. It is not the function of the Probate Court to decide whether they are entitled to such protection, and the decree appealed from does not decide that question.Id.
The plaintiff cites the case of Merrimac Associates, Inc. v. Disesa, supra, 180 Conn. 511, in which the plaintiff had been invited by executors of an estate to submit an offer to purchase estate property and been told that "the best offer as determined by price, terms and conditions will be accepted at the hearing." (Internal quotation marks omitted.) Id., 518. The plaintiff appeared at the scheduled hearing and "submitted an offer ‘considerably higher’ than the single other offer," but the court continued the hearing for two weeks to permit additional negotiations over certain conditions of the offer. Id. At a follow-up hearing, another party’s bid was approved. In finding that the plaintiff was aggrieved, the Supreme Court held as follows: "While one who bids upon the property of an estate offered for sale has no interest in the property itself, he does have an interest in the proceedings employed by the court to approve the sale." Id., 517-18. "[T]he filing of an application for the approval of the sale of an estate asset ... together with the executors’ invitation to bid directed to the plaintiff conferred upon the plaintiff the right to offer to purchase that asset and to due process of law in the court approving that sale. When the plaintiff did not receive the process that was due to him under all the circumstances, he was injured in fact and aggrieved ..." Id., 520. As later explained in Adolphson v. Weinstein, 66 Conn.App. 591, 596, 785 A.2d 275 (2001), cert. denied, 259 Conn. 921, 792 A.2d 853 (2002), "In Disesa ... a plaintiff was deemed aggrieved when he was invited to attend a hearing on the sale of real property, submitted the highest bid and was granted a continuance to engage in further negotiations, but the Probate Court rescheduled the continued hearing for an earlier time without notice to the plaintiff and then approved the sale of the property to another bidder." See also Doyle v. Reardon, 11 Conn.App. 297, 305, 527 A.2d 260 (1987) (stating that the "salient factor in Merrimac for its finding of aggrievement was that the plaintiff was denied a fair procedure in accordance with basic principles of due process. Furthermore, the court noted that General Statutes § 45-238, which was voluntarily invoked by the defendant in that case, required public notice of the hearing on the application for court approval of the sale. That statute contemplates an open and fair sale, and the executors, having voluntarily invoked it, and having invited the plaintiff to bid, conferred upon the plaintiff in Merrimac the right to offer to purchase the real estate, and to due process of law in the Probate Court").
The plaintiff relies on Merrimac by way of analogy. If the right to rely in Merrimac upon fair procedures in the Probate Court provided an interest in the proceedings employed by the court to approve the sale, the plaintiff here claims a similar right to rely upon the supposed abatement, upon the decedent’s death, of the judgment that the decedent had obtained. To extend the analogy from Merrimac, the plaintiff here seems to be arguing that his right to rely upon such an alleged abatement of the judgment provides him a pecuniary interest that was adversely affected by the probate decree opening the probate estate for the defendant to file an amended inventory. The essence of the plaintiff’s claim is that allowing an amended inventory subjected him to pecuniary harm by allowing the defendant to enforce the judgment against him. As noted above, an analogous argument was rejected by the court in Bridgeport v. Steiber, supra, 143 Conn. 720. Similarly, in McBurney v. Cirillo, 276 Conn. 782, 817-23, 889 A.2d 759 (2006) overruled on other grounds by Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 914 A.2d 996 (2007), the court held that a desire to avoid being sued for trespass did not provide defendants a "legally protected interest" in the probate proceedings that had given the plaintiff title to the property in question.
The plaintiff asserts as follows: "[Upon the decedent’s death], the judgment case was abated by the operation of law, a fact upon which Michael Ciarcia could justifiably rely." Plaintiff’s memorandum in opposition to motion to dismiss, p. 11.
His brief continues as follows: "the June 12, 2017 decree of the probate has clearly reopened the estate of Marcus Bordiere and has thereby adversely affected the pecuniary interest of Michael Ciarcia ... and thus provides the necessary legal aggrievement to bring this appeal." Plaintiff’s memorandum in opposition to motion to dismiss, p. 12.
In McBurney v. Cirillo, supra, 276 Conn. 818, the court described the defendants as follows: "The defendants argue that they were aggrieved by the Probate Court judgment because, if the plaintiffs did not have title to the [property in question], the plaintiffs could not sue them for trespass, and, consequently, it would be unnecessary for the defendants to have an easement, either implied or by prescription, in order to have access to the land." The court rejected their claim of aggrievement as follows:
While scores of probate appeals refer to aggrievement as requiring that an appellant show an interest in the probated estate itself, Merrimac does provide an exception to that rule. The Merrimac court affirmed the traditional notions that "the 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" and "that the interest which is adversely affected is a direct interest in the subject matter of the decree from which the appeal is taken." (Internal quotation marks omitted.) Merrimac Associates, Inc. v. Disesa, supra, 180 Conn. 516-17. The Merrimac court, however, also held that an adverse effect upon a legally protected interest in the Probate Court procedure and proceedings can provide the required aggrievement.
Here, the plaintiff claims that the Probate Court acted improperly in opening the decedent’s estate. The essence of Merrimac is that "a bidder on the property of an estate offered for sale has no interest in the property itself," but "does have an interest in the proceedings employed by the court to approve the sale." Adolphson v. Weinstein, supra, 66 Conn.App. 596. The plaintiff here was apparently allowed to participate in the probate proceedings. Just like the plaintiff in Merrimac, this plaintiff has no interest in the estate itself, and his mere participation in the probate proceedings is not enough, by itself, to establish aggrievement. See Doyle v. Reardon, supra, 11 Conn.App. 305. Unlike the plaintiff in Merrimac, moreover, he does not quarrel with the proceedings employed by the Probate Court. Instead, he only challenges the substance of the court’s decision to allow the probated estate to be opened for the filing of an amended inventory.
The Probate Court decision attached to the complaint states that the plaintiff filed an objection to the defendant’s motion to open the estate and file an amended inventory, and the plaintiff also apparently submitted certain documents to the Probate Court and was allowed to make arguments. The Probate Court clerk’s "Certification," also attached to the complaint, states that a copy of the probate decree was sent to the plaintiff.
The plaintiff thus argues that the defendant’s application in the Probate Court to open the estate in order to file an amended inventory was "an improper attempt to revive the otherwise abated judgment ..." " Plaintiff’s memorandum in opposition to motion to dismiss, p. 12.
Some courts have described Merrimac as expanding or broadening the scope of aggrievement for purposes of a probate appeal. Although aggrievement and standing for probate appeals may encompass more than a pecuniary interest in the estate, however, the courts have also recognized that "lines must be drawn." "The requirement that, in order to establish aggrievement, the interest which is adversely affected be ‘direct’ is of long-standing and unbroken lineage." Urrata v. Izzillo, 1 Conn.App. 17, 19-20, 467 A.2d 943 (1983). "[T]he nature of the interest that is presented must involve a legally protected personal right or status of the appellant." Buchholz’s Appeal From Probate, supra, 9 Conn.App. 417. "[N]o alleged debtor of an estate can be held to have any interest in whether the claim against him is inventoried." Lynch v. Skelly, supra, 138 Conn. 379. To paraphrase the language of our Supreme Court in Lenge v. Goldfarb, 169 Conn. 218, 221, 363 A.2d 110 (1975), "the mere inventorying of an asset," as the defendant here asked the Probate Court to allow, "ha[d] no effect upon the rights of an adverse claimant" to such an asset.
See, e.g., Buchholz’s Appeal From Probate, supra, 9 Conn.App. 415 (stating that "the concept of aggrievement in [probate] cases has evolved into a broader standard than that requiring a showing of a direct pecuniary interest"); Erisoty’s Appeal from Probate, 216 Conn. 514, 521, 582 A.2d 760 (1990) (citing Merrimac for the proposition that "a legally protected interest may derive from the administration of a probate estate"); Schoolhouse Corp. v. Olyphant, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV95 0548274 (August 8, 1995, Mulcahy, J.) (15 Conn. L. Rptr. 46, 49) (referring to "the broader definition [of aggrievement] thereof established in Merrimac"); Evans v. Estate of Simaitis, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 990586012S (June 17, 1999, Peck, J.) (stating as follows: "In Merrimac Associates, Inc. v. Disesa, the Supreme Court expanded the definition of ‘aggrievement’ under General Statues § 45-288 (now § 45a-186(a)) to include bidders on property of an estate who are injured because of the procedure employed by the Probate Court to approve the sale").
See Urrata v. Izzillo, 1 Conn.App. 17, 19, 467 A.2d 943 (1983) (citing Justice Holmes that "the great body of the law consists in drawing such lines ..." Schlesinger v. Wisconsin, 270 U.S. 230, 241, 46 S.Ct. 260, 262, 70 L.Ed. 557 (1926) (Holmes, J., dissenting)). In Urrata, the court held that a judgment creditor of an heir was not aggrieved by and had no standing to challenge an order of the Probate Court disinheriting that heir: "we agree with the trial court’s conclusion that the plaintiffs interest in the estate here is indirect rather than direct. If the will were set aside the plaintiff would not directly take any part of the estate. Any rights she claims are not rights in the estate itself; her interest derives strictly through a third person. Under these circumstances she is not aggrieved." Id., 20.
To the extent that the plaintiff claims the underlying judgment is invalid, he had no legally protected personal interest in whether the Probate Court opened the estate or whether that judgment was listed on an estate inventory. The Probate Court decree does not address the validity of the underlying judgment that the decedent obtained or any resulting judgment lien, but merely permits the defendant to list the judgment as a potential asset of the estate. Moreover, as discussed above, a probate decree could not affect the validity of any judgment entered by the Superior Court, an issue cognizable only in that court. Contrary to the plaintiff’s assertions, moreover, a judgment, unlike a pending lawsuit, does not abate upon death of the decedent, but may be enforced for at least eighteen years after entry of judgment. General Statutes § 52-598. Legal title to the judgment passed, upon the decedent’s death, to his personal representative, here the defendant executrix of his estate upon her appointment as such. The plaintiff did not have any "legally protected interest" in whether the judgment was listed on the inventory for the decedent’s estate. Debtors of a decedent, such as the plaintiff here, have neither standing to challenge orders regarding the administration of the decedent’s estate nor any "legally protected interest" in probate decrees regarding the estate or its administration.
General Statutes § 52-598 provides in relevant part: "(a) No execution to enforce a judgment for money damages rendered in any court of this state may be issued after the expiration of twenty years from the date the judgment was entered and no action based upon such a judgment may be instituted after the expiration of twenty-five years from the date the judgment was entered ..." See
Legal title to the chose in action that had been brought by the defendant’s deceased husband and in which he had obtained a default judgment against the plaintiff vested in the defendant, as executrix of the estate of her deceased husband, at the time of his death. See
The motion to dismiss is therefore granted.
I was personally implicated as far as the application on April 13, the application to reopen the estate ... As far as the estate being reopened, I simply disagree. Mrs. Bordiere doesn’t have a judgment lien against me. There is a judgment but she does not own that lien ... The estate was not opened. When Judge Clebowicz reopened it ... the probate court doesn’t have jurisdiction to reopen ... I’m personally implicated as far as the lawsuit goes and as far as, you know, them coming after me.
AS OF APRIL 13, 2017 AND AS OF JUNE 12, 2017, THE DEFENDANT DID NOT "OWN" THE JUDGMENT OR THE JUDGMENT CASE BECAUSE SHE WAS NOT THE SUCCESSOR JUDGMENT CREDITOR AND THE JUDGMENT CASE WAS ABATED AND NOT REVIVED.
PATRICIA BORDIERE DOES NOT "OWN" THE JUDGMENT LIEN. A JUDGMENT LIEN CANNOT BE CREATED ON BEHALF OF A DEAD PERSON OR BY A DEAD PERSON. AND IT DID NOT EXIST AT THE TIME OF DEATH OF MARCUS BORDIERE.Plaintiff’s "Supplemental Memorandum of Law in Support of Plaintiff’s Motion in Limine Dated September 24, 2019." ps. 3, 5.
On March 28, 1927, the defendant deposited $1,000 with the Commercial Trust Company of New Britain and received a certificate of deposit of that amount payable to himself. On August 23d, 1927, the defendant, having had domestic difficulties with his wife and fearing that she might attach the money so deposited, delivered the certificate to the Trust Company and received from it a certificate of deposit of the same amount in the name of and payable to his father, Howard A. Crampton. In 1930, having been divorced from his wife and desiring to use the money represented by the certificate of deposit, the defendant secured it from his father, who delivered it to him duly endorsed in blank, and on November 5, 1930, took it to the trust company for the purpose of cashing it. He was persuaded by an officer of the Trust Company to take, instead, only $975, and to execute and deliver to the Trust Company a note for that amount dated November 5, 1930, and payable three months after date, as collateral security for which he gave the Trust Company the certificate of deposit endorsed by his father. On December 13, 1930, the Commercial Trust Company was suspended by order of the bank commissioner, and the plaintiff was appointed temporary receiver on December 22d, 1930. In this action, brought by the receiver upon the $975 note, the defendant claimed the right to set off against the amount due upon the note, the amount due upon the certificate of deposit. The trial court allowed the set-off and rendered judgment in favor of the plaintiff to recover a balance of $16.25 only.
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It appears from the finding, in addition to the facts already recited, that the defendant’s father died on February 2, 1931, that the certificate of deposit was included in the inventory of his estate with the knowledge of the defendant and in the account of the administratrix, and was set out to the defendant in a certificate of mutual distribution signed by the defendant and his sister, who were the only heirs at law. The defendant reported to the judge of probate that the certificate of deposit stood in his father’s name and it was included in the inventory of his estate after conference with the judge of probate. The division of the estate between the defendant and his sister was agreed upon without reference to the certificate of mutual distribution.
The plaintiff claims that the defendant, by his report to the Court of Probate that the certificate of deposit stood in his father’s name and by joining with his sister in signing the certificate of mutual distribution, is estopped to deny that the certificate of deposit belonged to his father’s estate. If the plaintiff had paid the administrator of the estate of Howard A. Crampton the amount of the certificate of deposit, he might have claimed that the defendant was estopped by his conduct to dispute the payment. But it does not appear that the plaintiff has changed his position on the strength of any acts of the defendant, or been in any way prejudiced thereby. He is not, therefore, entitled to claim the benefit of an estoppel. (Citations omitted.) Searle v. Crampton, supra, 118 Conn. 43-46.
The interest asserted by the ... defendants, namely, that of avoiding having an action for trespass brought against them, is simply too remote to satisfy the jurisdictional requirements of § 45a-186(a). They were not heirs or beneficiaries of the estate ...
They claim, nonetheless, that, because the plaintiffs could not have sued them for trespass if the plaintiffs had not acquired the [property in question] through the Probate Court proceedings, they have shown that they had a legal interest in the estate. We have rejected the notion that the desire to avoid suit is sufficient to constitute a legal interest in the probate context ... If we were to accept the argument of the ... defendants, anyone who wished to cross the plaintiffs’ property, not just residents of the development, arguably could establish that they had a legal interest in the ... estate, because if the plaintiffs did not own the [property in question], they could sue no one for crossing that portion of the lawn. Such an interest is simply too remote and speculative to confer standing upon the ... defendants under § 45a-186(a). (Citation omitted.) Id., 822.
Cadle Co. v. Ogalin, 175 Conn.App. 1, 3 n.1, 167 A.3d 402, cert. denied, 327 Conn. 930, 171 A.3d 454 (2017) (noting that "[As a general matter], under § 52-598(a), a party has twenty years to execute the judgment and twenty-five years to enforce it through a separate action" [internal quotation marks omitted] ).
Lynch v. Skelly, supra, 138 Conn. 379 ("legal title to the personal property of a decedent, including choses in action, vests in his administrator or executor ... Such vesting occurs in the case of intestate estates not later than the time when the administrator is appointed and qualifies. It occurs before an inventory is filed" [citations omitted] ); Beecher v. Buckingham, 18 Conn. 110, 120-21 (1846) ("legal title to all personal property of the deceased, vests in his legal representatives. They can dispose of it at pleasure, being responsible for the faithful execution of the trust; and can institute actions at law for the recovery of debts ..."); Roorbach v. Lord, 4 Conn. 347, 347 (1822) ("title to personal property, on the death of the owner, vests in his executor or administrator ...").