Opinion
No. FST CV 10 6003024 S
April 16, 2010
MEMORANDUM OF DECISION ON MOTION TO DISMISS #105.00
On December 31, 2009, the plaintiff, John DeBruycker, filed an appeal from a decision of the Probate Court for the district of New Canaan. In his reasons for appeal, the plaintiff alleges that the New Canaan Probate Court currently has jurisdiction over the person and property of Anne Barth Duvall. Following a hearing on November 23, 2009, the Probate Court, Kimes, J., entered an order granting the conservator of Duvall's estate (the defendant) the authority to sell Duvall's real estate in New Canaan. At the hearing, the plaintiff, through counsel, objected to this sale on the ground that no appraisal had been made on the property. The plaintiff, who is Duvall's sole heir and son, also objects to the sale because he currently lives in the subject premises with his family. Therefore, the plaintiff alleges that he is aggrieved by the Probate Court's decision.
The defendant filed a motion to dismiss and a memorandum of law in support on February 18, 2010. As grounds, the defendant moves to dismiss this action because the plaintiff commenced his appeal more than thirty days following the Probate Court's decision. On March 8, 2010, the plaintiff filed a memorandum of law in opposition to the defendant's motion. This court heard this matter at short calendar on March 23, 2010.
"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." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
"An appeal from a Probate Court to the Superior Court is not an ordinary civil action . . . When entertaining 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.) Silverstein v. Laschever, 113 Conn.App. 404, 409, 970 A.2d 123 (2009). "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." (Internal quotation marks omitted.) Corneroli v. D'Amico, 116 Conn.App. 59, 63, 975 A.2d 107, cert. denied, 293 Conn. 928, 980 A.2d 909 (2009). "The right to appeal from the decision of a Probate Court is purely statutory . . . and the requirements fixed by statute for taking and prosecuting the appeal must be met . . . The failure to appeal timely from the decision or decree of the Probate Court warrants the dismissal of the appeal." (Citations omitted; internal quotation marks omitted.) Porto v. Sullivan, 119 Conn.App. 360, 365-66, 987 A.2d 1092 (2010).
In his memorandum of law, the defendant argues that this probate appeal must be dismissed because the plaintiff commenced this action more than thirty days following the Probate Court's decision. The defendant contends that the controlling statute governing the timing of probate appeals is General Statutes § 45a-187, which provides that all persons of the age of majority who were present or had legal notice of the hearing must file an appeal within thirty days. As the plaintiff in this case was present at the hearing and the procedures for a probate appeal must be strictly complied with, the defendant argues that the court should grant his motion to dismiss. The defendant also contends that the operative date for determining when the plaintiff commenced this action is the date of service of process.
In response, the plaintiff argues that the applicable statute is General Statutes § 45a-186, which ostensibly allows for a forty-five-day appeal period in certain types of cases. As the present case involves the request of a conservator to sell the home of a conserved person, the plaintiff argues that the operative time frame is a forty-five-day period, which would make his appeal timely. The plaintiff also contends that the purpose of § 45a-187 is to toll the appeal period for persons who may have an interest in the probate matter and are not present in the forum or otherwise do not receive notice. Finally, the plaintiff argues that probate appeals are commenced on the date of the filing of the complaint.
Section 45a-186 provides in relevant part: "(a) Any person aggrieved by any order, denial or decree of a court of probate 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 court of probate, appeal therefrom to the Superior Court." (Emphasis added.) The statute governing the duties of conservators of real and personal property is General Statutes § 45a-656b, and, as a result, the plaintiff contends that § 45a-186b applies in the present case. In contrast, § 45a-187, which is titled "Time of taking appeals," provides in relevant part: "(a) An appeal under section 45a-186 by persons of the age of majority who are present or who have legal notice to be present, or who have been given notice of their right to request a hearing or have filed a written waiver of their right to a hearing, shall be taken within thirty days, except as otherwise provided in this section."
General Statutes § 45a-656b provides in relevant part: "(a) . . . a conservator may not terminate a tenancy or lease of a conserved person, as defined in section 45a-644, sell or dispose of any real property or household furnishings of the conserved person, or change the conserved person's residence unless a court of probate finds, after a hearing, that such termination, sale, disposal or change is necessary or that the conserved person agrees to such termination, sale, disposal or change."
At first glance, there appears to be some contradiction in the timing sequence provided by the two statutes. While § 45a-186 ostensibly allows for a forty-five-day appeal period in certain types of cases, including conservatorships, § 45a-187 clearly provides for a thirty-day appeal period for persons who are the age of majority and who were present or had legal notice to be present at the probate hearing. As there is no dispute that the plaintiff was present at the Probate Court hearing and that this case is an appeal of the Probate Court's decision to approve the sale of a conserved person's real property, both of these statutes seemingly apply to the present case. In order to resolve this discrepancy between the two statutes, it is necessary to examine closely the language of the two statutes as well as any recent changes in statutory language.
The Probate Court's decision, which is attached to the plaintiff's complaint, reflects that the plaintiff and his counsel were present at the November 23, 2009 hearing before the Probate Court.
Section 45a-186 was recently amended by No. 07-116 of the 2007 Public Acts. As stated by one Superior Court judge: "The Act, which took effect on October 1, 2007, brought about sweeping changes in the mechanisms for appointing conservators and designating their powers, and it also established new requirements for appeals from Probate Court decisions concerning conservatorships." Longobardi v. Torrenti, Superior Court, judicial district of New Haven, Docket No. CV 07 4024992 (November 1, 2007, Silbert, J.) ( 44 Conn. L. Rptr. 421, 421).
Prior to this amendment, § 45a-186 read in relevant part: "(a) Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specifically provided by law, may appeal therefrom to the Superior Court in accordance with subsection (b) of this section." In the previous version of § 45a-186, no portion of the statute provided a timing sequence for the taking of a probate appeal; the only time frame was established by § 45a-187. Consequently, it can be seen that the General Assembly affirmatively inserted the "not later than forty-five days" language into § 45a-186 when it was amending the procedure for probate appeals in conservatorship cases. "When the legislature amends the language of a statute, it is presumed that it intended to change the meaning of the statute and to accomplish some purpose." (Internal quotation marks omitted.) Chatterjee v. Commissioner of Revenue Services, 277 Conn. 681, 693, 894 A.2d 919 (2006). Accordingly, it makes sense that the legislature intended to create a longer appeal period for conservatorship probate appeals. Otherwise, the change in the language of § 45a-186 would be meaningless. This conclusion has been reached by at least one Superior Court judge, who stated that "§ 45a-186(a) as codified by P.A. 07-116, § 3 . . . provides [that] a conservatorship appeal [must] be commenced `not later than forty-five days after the mailing of an order, decree, or denial.'" In re Simon, Superior Court, judicial district of Danbury, Docket No. CV 09 4009977 (February 5, 2009, Sheedy, J.).
The general canons of statutory construction also mandate that § 45a-186 should be read to allow for a forty-five-day appeal period in conservatorship cases. "Where . . . more than one statute is involved, we presume that the legislature intended them to be read together to create a harmonious body of law . . . and we construe the statutes, if possible, to avoid conflict between them . . . [I]t is an elementary rule of construction that all sections of an act relating to the same subject matter should be considered together . . . Insofar as possible the separate effect of each individual part or section of an act is made consistent with the whole." (Citation omitted; internal quotation marks omitted.) State v. Garcia, 108 Conn.App. 533, 550-51, 949 A.2d 499, cert. denied, 289 Conn. 916, 957 A.2d 880 (2008). If the court were to determine that the thirty-day timeframe of § 45a-187 provided the only appeal period in cases where the plaintiff had notice, then the forty-five-day language of § 45a-186 would be completely superfluous. When read together, it can be seen that § 45a-187 provides the general rule of a thirty-day appeal period in cases where the plaintiff had notice, "except as otherwise provided in this section." These exceptions are enumerated in § 45a-186, which explicitly provides for a forty-five-day appeal period in certain types of cases. Accordingly, this court determines that the forty-five-day timeframe of § 45a-186 applies in the present case.
In Porto v. Sullivan, supra, 119 Conn.App. 360, the plaintiff appealed a decision of the Probate Court approving the application of a conservator to sell a conserved person's home. Accordingly, Porto is very factually similar to the present case. In Porto, the Appellate Court applied the thirty-day appeal period from § 45a-187 and determined that the plaintiff's appeal was untimely. Porto is distinguishable from the present case, however, because the appeal in Porto was filed on November 10, 2004, which was prior to the enactment of P.A. 07-116. Accordingly, the Appellate Court was simply applying the only appeal period that was in existence at that time, the thirty-day time frame enunciated in § 45a-187.
The Probate Court issued its decision on November 23, 2009. According to the affidavit of Karen P. Smith, who is the clerk of the New Canaan Probate Court, this decision would have been mailed to the plaintiff on that date or the following day. The plaintiff filed this probate appeal on December 31, 2009. Unlike ordinary civil actions, probate appeals are commenced on the filing date, not the date of service of process. "The meaning of § 45a-186(a), as amended by P.A. 07-116, ascertained both from its text and in relation to other statutes, is plain and unambiguous. It provides that an appeal of an order of the Probate Court is commenced by filing a complaint in the Superior Court. A complaint is filed when it is lodged with the clerk of the court." Corneroli v. D'Amico, supra, 116 Conn.App. 65. Consequently, the plaintiff commenced this probate appeal within the forty-five-day appeal period found in § 45a-186. Accordingly, the defendant's motion to dismiss is denied.