Opinion
FBTCV186078289S
04-12-2019
Margaret M. Kelly et al. v. Karen Gano et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Stewart, Elizabeth J., J.
MEMORANDUM OF DECISION ON DEFENDANT SALAVATION ARMY, SOUTHERN NEW ENGLAND DIVISION’S MOTION TO STRIKE (NO. 105.00)
STEWART, J.
Defendant Salvation Army, Southern New England Division ("Salvation Army") moves to strike this action insofar as it was commenced by Margaret Kelley in her capacity as Executrix of the Estate of Dorothy S. Cotton. Salvation Army argues that Margaret Kelley has no standing to bring this action as executrix because she is not aggrieved in that capacity. Salvation Army moves to strike, rather than to dismiss, because it concedes that Margaret Kelley has standing in her capacity as an individual beneficiary and that the other individual plaintiffs also have standing in that capacity. The defendant originally opposed the motion to strike in her capacity as executrix (no. 110.00), arguing that she was aggrieved in that capacity. More recently. she has filed a supplemental memorandum in opposition (no. 128.00), in which she concedes that after oral argument on this motion, she was removed as executrix by the Probate Court on January 8, 2019 and that a successor executrix, Kathleen Kelley, was appointed and accepted the appointment. She indicates in that supplemental memorandum, however, that she continues to oppose the motion to strike in her individual capacity. The court holds that Margaret Kelley did not have standing, even when she was executrix, and clearly does not have standing now in that capacity, and therefore grants the motion to strike. The court does not read the motion to strike as being directed to Margaret Kelley in her capacity as an individual beneficiary, and therefore she may proceed as a plaintiff in that capacity.
FACTUAL ALLEGATIONS
This action is an appeal from a July 27, 2018 Order and Decree by the Town of Stratford Probate Court (Rowe, J.). The plaintiff-appellants are Margaret Kelley, in her capacity as executrix, and Margaret, Kathleen, Kevin and Brian Kelley in their capacities as individual beneficiaries of the Estate of Dorothy S. Cotton. The complaint alleges that Paragraph IV of the will, entitled Specific Bequests, contains 35 specific cash bequests, which gifts total $300, 000.00. Salvation Army is one of the entities to whom a specific bequest was made. The complaint further alleges that Paragraph V of the will, entitled Annuity, sets forth a formula for a specific gift from the estate of an amount certain to each of the Kelley family beneficiaries and one Mary Lee Prussel. According to the complaint, the estate did not have enough funds to satisfy all of the bequests in Paragraph IV and the gifts in Paragraph V. When Margaret Kelley, as executrix, proposed a Final Accounting and Distribution Schedule that would have fulfilled all of the gifts and bequests at about 80 percent of the full amount, another defendant bequest recipient in this action objected to the Probate Court. The complaint alleges that the Probate Court held a hearing at which it declined to receive parol evidence "offered by the Estate to indicate, clarify and explain the wishes and intentions of the decedent ..." According to the complaint, the Probate Court disallowed the proposed Final Accounting and construed the will to require that the Paragraph V gifts to the Kelley family members be paid from the residue of the estate, which would have the effect of that paragraph abating entirely.
The complaint alleges that at the outset of the hearing, the probate judge made a "cursory oral remark" to the parties that his "children attended St. Catherine School," the objecting party and a defendant in this action. The complaint asserts that this violated the procedures for disclosure set out in Connecticut Probate Court Rule 15.6. The plaintiff-appellants allege that they "jointly and severally, are each aggrieved by this Order and Decree ..." and that their "substantial rights ... have been prejudiced ..." There is no allegation in the complaint that sets forth specifically how Margaret Kelley was aggrieved in her capacity as executrix as opposed to in her capacity as beneficiary.
LEGAL ANALYSIS
"The issue of standing implicates subject matter jurisdiction ..." Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053, 1060 (2009) ("Wilcox "). "Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong." (Internal quotation marks omitted.) Tolly v. Department of Human Resources, 225 Conn. 13, 29, 621 A.2d 719, 727 (1993). Once subject matter jurisdiction has been raised, the court must determine whether it has jurisdiction "before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102, 1109 (2003).
"Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter in controversy ... When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue ... Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes ... standing by allegations of injury [that he or she has suffered or is likely to suffer]. Similarly, standing exists to attempt to vindicate arguably protected interests ..." Wilcox, supra, 214, 982 A.2d 1053, 1060-61.
"Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved ... 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 challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] ... Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ... has been adversely affected." (Citations omitted; Internal quotation marks omitted.) Wilcox, supra, 214-15, 982 A.2d 1053, 1061. General Statutes § 45a-186(a) provides that" ... any person aggrieved by any order, denial or decree of a Probate Court in any matter ... appeal therefrom to the Superior Court."
"Standing focuses on whether the party initiating the action is the proper party to request adjudication of the issues." Stamford Hospital v. Vega, 236 Conn. 646, 657, 674 A.2d 821 (1996). "[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 ..." (Citations omitted; internal quotation marks omitted.) Wilcox, supra, 294 Conn. 213-14, 982 A.2d 1060.
Margaret Kelley has not met her burden, even if she still was the executrix, of demonstrating that she is the proper party to invoke judicial resolution of this dispute. She has not alleged anything in the complaint to demonstrate that she is aggrieved in her capacity as executrix. Moreover, the case law that she discusses in her memorandum in opposition (no. 110.00) merely holds that an executor may take an appeal from a probate decree under certain circumstances, none of which apply here. The principal case on which the plaintiff-appellants rely is Avery’s Appeal, 117 Conn. 201, 167 A. 544 (1933). That case however, affirmed the dismissal of an administrator’s appeal after he was removed by the Probate Court because a will was located. Summarizing the case law, our Supreme Court held that "persons as to whom a right of appeal is recognized are those who are acting in a fiduciary or representative capacity under a subsisting appointment which has not been terminated, by revocation or otherwise, and who therefore are under present duty to protect the estate from diversion." Id., 167 A. 545.
The more recent case law relied upon by the plaintiffs-appellants does not support standing here. See, e.g., O’Leary v. McGuinness, 140 Conn. 80, 98 A.2d 660 (1953) (holding that "[a] trustee of a charitable trust has a special duty to protect the interests of the beneficiaries because the real beneficiaries are unascertainable and therefore unable to protect themselves"); Bradley’s Appeal, 19 Conn.App. 456, 563 A.2d 1358 (1989) (holding that executor who was appointed in New York was aggrieved where different executor was appointed in Connecticut); Dunham v. Dunham, Superior Court, judicial district of Litchfield, Docket Nos. 055308 and 055467 (July 17, 1992, Pickett, J.) (holding that the plaintiffs had set forth their aggrievement in detail); First National Bank of Hartford, Executor v. Barbara Beckendorf, Admnistratrix, 9 Conn.Supp. 223 (1941) (holding that an executor may bring an appeal if the probate court refuses to admit a will to probate). She cites no authority for the proposition that an executor may pursue an appeal on behalf of some, but not all, of those who would benefit from an estate, much less for the proposition that an executor may pursue an appeal on behalf of some beneficiaries and against other beneficiaries. Indeed, at oral argument, her counsel conceded that there was no case on point.
More to the point, the complaint does not allege that in her capacity as executrix, she has a specific, personal and legal interest in the outcome of this dispute that is distinct from her interest as an individual beneficiary. Thus, she does not meet the first prong of the classical aggrievement test. See Wilcox, supra, 214-15, 982 A.2d 1053, 1061. The court holds that she does not have standing in the capacity as executrix to bring this appeal.
If Margaret Kelley in her capacity as executrix was the sole plaintiff, a motion to dismiss would be proper vehicle for the defendant to seek its relief. However, the four Kelley family members are plaintiffs in their individual capacity. The complaint clearly alleges that they have been aggrieved by the Probate Court’s order and decree, and Salvation Army concedes that. The appropriate procedural mechanism to use in such a circumstance is a motion to strike for misjoinder pursuant to Practice Book § 11-3. The Hartland Pond Corp. v. Noble, Superior Court, judicial district of Litchfield, Docket No. CV-13-6009240 (January 24, 2014, Trombley, J.) (holding that motion to dismiss was not proper procedural vehicle to challenge standing of corporate plaintiff in derivative action where shareholder plaintiffs had standing); Witt v. Weitzman, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-09-5009458 (November 23, 2009, Bellis, J.) (48 Conn.L.Rptr. 851) (holding that where one of two plaintiffs lacked standing but the other had standing, a motion to strike for misjoinder was the proper procedural vehicle to challenge standing).
As the court explained in Will, supra:
Normally, "[t]he proper procedural vehicle for disputing a party’s standing is a motion to dismiss." (Internal quotation marks omitted.) D’Eramo v. Smith, 273 Conn. 610, 615 n. 6, 872 A.2d 408 (2005). When an action is maintained by plaintiffs whose standing is not challenged, however, an attack on the standing of one of the plaintiffs is essentially a claim of misjoinder. See, e.g., Connecticut Light & Power Co. v. Public Utilities Control Authority, 176 Conn. 191, 200, 405 A.2d 638 (1978) (holding that presence of two proper parties plaintiff to action rendered challenge to standing of one other party plaintiff in essence claim of misjoinder); Hartford v. Local 308, 171 Conn. 420, 429, 370 A.2d 996 (1976) (rejecting argument that joinder of party without standing to application for confirmation of arbitration award, filed jointly by multiple parties, deprived court of jurisdiction over application). Misjoinder is the "[n]aming [of] an improper person as a party in a legal action ..." Zanoni v. Hudon, 42 Conn.App. 70, 73, 678 A.2d 12 (1996). Moreover, General Statutes § 52-108 provides: "An action shall not be defeated by the nonjoinder or misjoinder of parties ..." See also Practice Book § 9-19. Rather, under Practice Book § 11-3, "[t]he exclusive remedy for misjoinder of parties is by motion to strike ..."
Superior Court, judicial district of Ansonia-Milford, Docket No. CV-09-5009458.
This court grants the motion to strike for misjoinder of Margaret Kelley in her capacity as Executrix of the Estate of Dorothy S. Cotton.