Opinion
No. HHB CV 11 6008657 S
April 1, 2011
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS
BACKGROUND
The plaintiff, Josephine Huerta and the defendant, Doris Alvarez are sisters. Their mother is Margarita Huerta. On March 23, 2010, Margarita executed an advance designation of conservator, naming Josephine as conservator of Margarita's person and estate. On November 16, 2010, Josephine petitioned the probate court for involuntary representation and appointment of conservator of Margarita. On December 27, 2010, the probate court appointed Josephine conservator of Margarita's estate but appointed Doris conservator of Margarita's person. Josephine has appealed the order of the probate court, claiming the court disregarded the advance designation.
Doris has filed a motion to dismiss the action for lack of standing. Josephine has filed an objection, claiming statutory aggrievement pursuant to General Statutes § 45a-648 as well as classical aggrievement. The court has heard oral argument and has considered the memoranda submitted by both parties.
LEGAL STANDARD OF REVIEW:
"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.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006).
The standard governing a trial court's review of a motion to dismiss is well established. "In ruling upon whether a complaint survives a motion to dismiss, 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.) Brennan v. Fairfield, 58 Conn.App. 191, 195, 753 A.2d 396 (2000).
"Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong." (Citations omitted; internal quotation marks omitted.) Doe v. Roe, 246 Conn. 652, 661, 717 A .2d 706 (1998). "A claim that [the] court lacks subject matter jurisdiction [may be raised] at any time." (Internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 787, 712 A.2d 396 (1998). "Once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Citations omitted; internal quotation marks omitted.) Figueroa v. C S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996).
When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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. Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
Standing to bring an action implicates the court's subject matter jurisdiction. The plaintiff ultimately bears the burden of establishing standing. Seymour v. Region One Bd. of Ed., 274 Conn. 92, 104, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126 S.Ct. 659, 163 L.Ed.2d 526 (2005).
ANALYSIS:
"Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless one has, in an individual or representative capacity, some real interest in the cause of action. Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved." Gold v. Rowland, 296 Conn. 186, 207, 994 A.2d 106 (2010). See also, Bysiewicz v. Dinardo, 298 Conn. 748 (2010).
I. Statutory Aggrievement
"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 and citations omitted.) Albuquerque v. State Employees Retirement Comm., 124 Conn.App. 866, 873, 10 A.3d 38 (2010).
"[T]o determine whether a party has standing to make a claim under a statute, a court must determine the interests and the parties that the statute was designed to protect . . . Essentially the standing question in such cases is whether the . . . statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief . . . The plaintiff must be within the zone of interests protected by the statute . . . It has been [noted] that the zone of interests test bears a family resemblance to the scope of the risk doctrine in the law of torts . . . In tort law, it is not enough that the defendant's violation of the law caused injury to a plaintiff. The defendant must also owe that plaintiff a duty. Similarly, with respect to the law of [statutory] standing, it is not enough that a party is injured by an act or omission of another party. The defendant must also have violated some duty owed to the plaintiff." (Citations omitted; emphasis in original; internal quotation marks omitted.) Albuquerque v. State Employees Retirement Comm., supra, 124 Conn.App. at 873-74. Therefore, the court looks to General Statutes § 45a-648 to make this determination. Subsection (a) of this statute states, in relevant part, "An application for involuntary representation may be filed by any person alleging that a respondent is incapable of managing his or her affairs or incapable of caring for himself or herself and stating the reasons for the alleged incapability." The plaintiff made such application.
An applicant pursuant to this statute who has not received the requested relief is statutorily aggrieved and entitled to appeal. "General Statutes § 45a-648 provides that `any person' may apply to the Probate Court for the appointment of a conservator. Because the right to file an application . . . was expressly given to any . . . person, it naturally follows that [a] person who filed an application but was denied [the relief requested] . . . should be afforded an opportunity to appeal from the Probate Court's decision." (Internal quotation marks omitted.) Honan v. Greene, 37 Conn.App. 137, 145, 655 A.2d 274 (1995).
"By the express terms of the statute, the plaintiff was given a right to apply for a conservator; in order for that right to be adequately protected, the plaintiff must be permitted to appeal the decision of the Probate Court . . . Thus, the plaintiff, as a person entitled to file an application for the appointment of a conservator pursuant to § 45a-648, is statutorily aggrieved upon the denial of his application and entitled to appeal pursuant to § 45a-186." (Citation omitted; internal quotation marks omitted.) Id.
Because the plaintiff, Josephine, is statutorily aggrieved, she is entitled to pursue an appeal, pursuant to General Statutes § 45a-186.
General Statutes § 45a-186(a) states, in relevant part, "Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may . . . appeal therefrom to the Superior Court."
II. Classical Aggrievement
"The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision. Aggrievement is established if there is a possibility, as distinguished from a certainty . . . that some legally protected interest has been adversely affected." (Internal quotation marks omitted.)" Gold v. Rowland, supra, 296 Conn. at 207.
As to the first prong of the test, Josephine is the daughter of the conserved person. The prong is not met simply because Josephine is a blood relative of Margarita. Fitzhugh v. Fitzhugh, 156 Conn. 625, 627, 239 A.2d 513 (1968). Doris also has the same claim. The prong is met because Josephine is also the predetermined choice of Margarita to be conservator of her person and estate. Josephine has a specific personal and legal interest in the subject matter of the order of the probate court.
As to the second prong of the test, as Josephine had applied for appointment as personal conservator of Margarita's person and was denied this relief, she has been specially and injuriously affected by the order of the court. This is based upon Josephine's allegation in the complaint that the court's appointed conservator, Doris, has filed a petition with the probate court to move Margarita from Connecticut to Florida. Complaint, ¶ 12. In a motion to dismiss, the 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. Conboy v. State, supra, 292 Conn. at 652. Taking this allegation as true, there exists the possibility that, should the petition be granted, Josephine's relationship with Margarita may suffer. "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." Kucej v. Kucej, 34 Conn.App. 579, 582, 642 A.2d 81 (1994) citing Erisoty's Appeal from Probate, 216 Conn. 514, 519, 582 A.2d 760 (1990. This possibility of aggrievement alone is sufficient to provide Josephine standing to pursue her appeal of the court's order.
Because the plaintiff, Josephine, is classically aggrieved, she is entitled to pursue an appeal, pursuant to General Statutes § 45a-186.
ORDER:
The motion to dismiss (104.00) is denied. The objection (107.00) is sustained.