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Kaltsas v. Kaltsas

Connecticut Superior Court Judicial District of Middlesex at Middletown
Jan 8, 2008
2008 Ct. Sup. 55 (Conn. Super. Ct. 2008)

Opinion

No. CV07-4007142

January 8, 2008


MEMORANDUM OF DECISION RE MOTION TO DISMISS #111


The appellant, Christopher Kaltsas, filed a motion for appeal from the Westbrook Probate Court on May 21, 2007, claiming that he is aggrieved by the Probate Court's denial of his application for temporary conservator of his father, George H. Kaltsas, an appellee in this matter. On July 12, 2007, the appellees filed a motion to dismiss the appellant's appeal and a supporting memorandum of law. On October 1, 2007, the appellant filed a memorandum of law in opposition. On October 15, 2007, a reply was filed by George Kaltsas. The matter was argued on short calendar on November 5, 2007. Subsequent to the short calendar hearing, the appellant filed a sur-reply and supplemental memorandum of law on November 14, 2007.

Eugenia Sakellis, a daughter of George Kaltsas, is also an appellee.

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.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). "[I]n ruling on a motion to dismiss, the trial 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.) Fort Trumbull Conservancy LLC. v. New London, 265 Conn. 423, 432-33, 820 A.2d 801 (2003).

The appellants allege in their appeal that the Probate Court incorrectly denied Christopher Kaltsas' petition for temporary conservatorship of George Kaltsas when the court found that service of process was insufficient. In response, the appellees argue that the Superior Court does not have jurisdiction over the appeal on the basis of the insufficient service of process in the underlying probate matter.

As a preliminary matter, the court notes that it is not bound by the decision of the Probate Court, and can determine, on appeal, whether service of process in the underlying matter was sufficient. "In an appeal from probate there is a trial de novo in which the appellant has the opportunity to present any evidence which could have been offered in the [P]robate [C]ourt, whether or not it was actually offered. And in the ordinary probate appeal, the [S]uperior [C]ourt decides the matters on which the appeal was taken without regard to the action or decree of the [P]robate [C]ourt." (Internal quotation marks omitted.) Palozie v. Palozie, 283 Conn. 538, 541 n. 5, 927 A.2d 903 (2007). Holding that the Probate Court's dismissal, which was based on insufficient service of process, deprives this court of jurisdiction over the matter would effectively circumvent the purpose of the appeal process, as the propriety of the dismissal is the very subject of the current appeal. Whether the underlying action was properly served is the subject of the appellants' appeal and therefore, issues concerning service of the temporary conservatorship application are properly left for the fact finder to determine. The appellees' motion to dismiss, therefore, is denied on this ground.

In support of their motion to dismiss, the appellees next argue that the appellants lack standing to appeal from the Westbrook Probate Court decree. Specifically, the appellees argue that the appellants are not "aggrieved." In response, the appellants argue that they brought their temporary conservatorship application in the Probate Court pursuant to General Statutes § 45a-648(a), and the denial of that application is grounds for the pending probate appeal, which they filed in accordance with § 45a-186.

General Statutes § 45a-648(a) states in relevant part that "[a]n 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."

General Statutes § 45a-186 provides in relevant part that "(a) Any person aggrieved by an 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 in accordance with subsection (b) of this section."

"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.) Shockley v. Okeke, 92 Conn.App. 76, 80, 882 A.2d 1244 (2005), appeal dismissed, 280 Conn. 777, 912 A.2d 991 (2007). Probate appeals are governed by various General Statutes, including General Statutes § 45a-186, which provides an avenue for an "aggrieved" party to appeal a probate decision.

"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 [appellant] was given a right to apply for a conservator; in order for that right to be adequately protected, the [appellant] must be permitted to appeal the decision of the Probate Court . . . Thus, the [appellant], 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.

In accordance with § 45a-186 and the holding in Honan v. Greene, supra, 37 Conn.App. 137, the appellants in this matter are statutorily aggrieved. Having determined the appellants to be statutorily aggrieved, this court need not discuss classical aggrievement. The motion to dismiss, therefore, is not granted on this ground.

The appellees' last argument is that the appellants' action is without merit and violates General Statutes § 45a-648(b). Specifically, the appellees argue that a Massachusetts Probate Court already has jurisdiction over the present matter, barring Connecticut from hearing this appeal. The appellees' argument, however, is incorrect. Connecticut is not barred from hearing this appeal.

General Statutes § 45a-648(b) provides that "[a]ny person who wilfully files a fraudulent or malicious application for involuntary representation or appointment of a temporary conservator or any person who conspires with another person to file or cause to be filed such an application or any person who wilfully testifies either in court or by report to the court falsely to the incapacity of any person in any proceeding provided for in sections 45a-644 to 45a-662, inclusive, shall be fined not more than one thousand dollars or imprisoned not more than one year or both."

"The pendency of an action in one state is not a ground for abatement of a later action in another state . . . This is so even though the court in which the first action is pending has acquired complete jurisdiction and even though the parties are reversed in the subsequent action." (Citation omitted.) Sauter v. Sauter, 4 Conn.App. 581, 584, 495 A.2d 1116 (1985); see also Schaefer v. O.K. Tool Co., 110 Conn. 528, 535, 148 A. 330 (1930); Bicc Brand-Rex Co. v. American Press, Superior Court, judicial district of Windham, Docket No. CV 960053877 (November 6, 1996, Sferrazza, J.). In accordance with Connecticut case law, the Superior Court can hear this matter, despite the pending action in the Massachusetts Probate Court. The motion to dismiss, therefore, is not granted on this ground.

The appellees do attempt to make an additional argument for the first time in their reply brief. In their response to the appellants' memorandum in opposition to the appellees' motion to dismiss, the appellees argue that the appellants failed to make service in accordance with Public Acts 2007, No. 116, § 18, which became effective on October 1, 2007. "Claims . . . are unreviewable when raised for the first time in a reply brief." Grimm v. Grimm, 276 Conn. 377, 393-94 n. 19, 886 A.2d 391 (2005), cert. denied, 126 S.Ct. 2296, 164 L.Ed.2d 815 (2006). This court, herefore, will not address this additional claim.

CONCLUSION

The defendant's motion to dismiss is denied.

CT Page 58


Summaries of

Kaltsas v. Kaltsas

Connecticut Superior Court Judicial District of Middlesex at Middletown
Jan 8, 2008
2008 Ct. Sup. 55 (Conn. Super. Ct. 2008)
Case details for

Kaltsas v. Kaltsas

Case Details

Full title:CHRISTOPHER KALTSAS v. GEORGE KALTSAS

Court:Connecticut Superior Court Judicial District of Middlesex at Middletown

Date published: Jan 8, 2008

Citations

2008 Ct. Sup. 55 (Conn. Super. Ct. 2008)
44 CLR 726