Opinion
No. CV 05-4006718-S
April 20, 2006
MEMORANDUM OF DECISION ON MOTION TO DISMISS
This case is an appeal from a decree of the Probate Court for the District of Greenwich in the matter of Carmella Hickey, An Incapable Person. On July 18th, 2005 the Probate Court (Hopper, J.) entered an order upon the application of the defendant Donald Corbo (described as a cousin of the 89-year-old Ms. Hickey) appointing Attorney Wilmot L. Harris, Jr. as the Conservator of the Estate and Person of Carmella Hickey. Thereafter, on August 15, 2005, the Probate Court acting on its own motion in accordance with the provisions of § 45a-128(b)(3), Conn. Gen. Stat. entered a Decree modifying the July 18, 2005 order by inserting findings (1) that clear and convincing evidence has been presented that the respondent is incapable of managing her affairs and caring for herself by reason of moderate to severe dementia and needs 24-hour supervision; and that "all parties present at the hearing agreed that a Conservator of the person and estate was necessary."; and (2) that Carmella Hickey signed a designation of conservator for future incapacity on March 3, 2005; that Paul Daddona, the proposed conservator on said designation, has failed to cooperate with the Court on numerous occasions dealing with the submission of documents and not permitting family members access to Carmella Hickey as requested by the Court. The person so designated in advance as her conservator by Carmela Hickey, Paul Daddona, has filed the instant appeal pursuant to § 45a-186 Conn. Gen. Stat., claiming procedural irregularities in the Probate Court proceedings and complaining that he should have been appointed as the conservator of Carmella Hickey in accordance with her advance directive. On July 25, 2005 the Probate Court entered an order allowing the filing of this appeal and set the terms of an Order of Notice. Now before this court is the Motion to Dismiss dated October 25, 2005 as filed by the defendant Donald Corbo, claiming that the plaintiff/appellant Paul Daddona lacks aggrievement and therefore has no standing to bring this appeal, which implicates this Court's subject matter jurisdiction.
§ 45a-128(b)(3) authorizes a Probate Court, on application of an interested person or on its own motion to reconsider, modify, or revoke any order or decree of the court other than a decree authorizing the sale of real estate . . ." (3) to correct a scrivener's or clerical error."
The appellant, Paul Daddona claims that no formal or evidentiary hearing was held at any time in the Probate Court. The Probate Court's reference to "the hearing" does not specify any date or the degree of formality, but the Probate Court has made its two supplemental findings on the basis of "clear and convincing evidence" which implies that evidence was heard. Whether or not an adequate hearing was conducted is one of the issues raised in this appeal.
Discussion
"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.) Fillipi v. Sullivan, 273 Conn. 1, 8 (2005). "[I]n ruling on a motion to dismiss, the trial court must take the facts 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.) Fort Trumbull Conservancy, LLC v. New London, 256 Conn. 423, 432-33 (2003). Consequently, "[i]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) St. George v. Gordon, 264 Conn. 538, 544-45 (2003).
Under § 45a-186 an appeal may be filed by ". . . any person aggrieved by any order, denial or decree of a court of probate in any matter . . ." The absence of aggrievement is a defect which deprives the Superior Court of jurisdiction to entertain the appeal. Adolphson v. Weinstein, 66 Conn.App. 591, 595 (2001), cert. denied 259 Conn. 921 (2002). "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." (Citation omitted; internal quotation marks omitted.) Kucej v. Kucej, 34 Conn.App. 579, 581 (1994). "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." Id. Aggrievement falls within two categories, classical and statutory. Id. The plaintiff Paul Daddonna claims both types of aggrievement in this matter. The Court finds that he has statutory aggrievement, and therefore will not discuss his claims of classical aggrievement.
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. CT Page 7493 Honan v. Greene, 37 Conn.App. 137, 144 (1995). A statute need not specifically provide that certain persons come within its protection in order to establish aggrievement as long as that protection may be implied fairly. Herzog Foundation, Inc. v. University of Bridgeport, 41 Conn.App. 790 (1996). Statutory aggrievement "merely requires a claim of injury to an interest that is protected by statute." Kujec v. Kujec, 34 Conn.App. 579, 582 (1994.) Although there appears to be no exact precedent involving a Probate Court's refusal to appoint a designated conservator, there is analogous authority involving a testator's right to designate his executor. In Appeal of Probate of Bencivenga, 30 Conn.App. 334 (1993), the petitioners, the children of the testator, had been appointed in their father's will as alternate co-executors in the event that the primary executrix, their mother and the testator's widow, could no longer serve. Following the removal of the widow as executrix, the Milford Probate Court did not appoint the children as successor coexecutors, but rather appointed another as Administrator c.t.a. The children appealed to the Superior Court which dismissed the appeal for lack of aggrievement. The Appellate Court reversed, holding that the children had a legal right to be appointed as successor co-executors and had aggrievement and standing to protect that right. Although there is a distinction in that the statute on appointment of successor executors, Conn. Gen. Stat. § 45a-290(c) provides that the Probate Court ". . . shall appoint such . . . successor executor[s] named in the will as executor[s]" (Emphasis added), and there is no such mandatory language in § 45a-645 with respect to designation of conservators, there is similar mandatory language in the requirement of § 45a-647(e), Conn. Gen. Stat. that a Probate Court, in determining whether a conservator should be appointed and in selecting a conservator ". . . shall consider whether the respondent has previously made alternative arrangements for the care of his or her person or for the management of his or her affairs, including, but not limited to, the execution of a valid durable power of attorney, the appointment of a health care agent, or other similar document. The respondent may, by oral or written request, if at the time of the request he or she has sufficient capacity to form an intelligent preference, nominate a conservator, who shall be appointed unless the court finds the appointment of the nominee is not in the interests of the respondent." (Emphasis added.) Furthermore, the legislature has drawn a close parallel between advance designations of executors and conservators by requiring in subsection (b) of § 45a-645 that a written designation of a conservator must be executed, witnessed and revoked in the same manner as provided for wills which is further supportive of application of the Bencivenga holding to the aggrievement of designated conservators who are not appointed. As said by the Bencivenga court: The question of standing . . . merely requires allegations of a colorable claim of injury to an interest that is arguably protected by the statute in question." (Citations omitted.) Appeal Prom Probate of Bencivenga, supra, 30 Conn.App at 337. The Court finds that appellant Daddona has met that burden.
Order
For the foregoing reasons the Court finds that the plaintiff/appellant Paul Daddona is aggrieved by the decree of the Greenwich Probate Court appointing Attorney Wilmot L. Harris, Jr. as the Conservator of Carmella Hickey and therefore has standing to bring and maintain this appeal. This Court has subject matter jurisdiction and the Motion to Dismiss (No. 103) is denied.
So Ordered.