Opinion
HHDCV195059374S
08-05-2019
Heftziba Mandell v. Donna Dolloff, Executrix et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Shapiro, Robert B., J.T.R.
MEMORANDUM OF DECISION
ROBERT B. SHAPIRO JUDGE TRIAL REFEREE
On July 31, 2019, the court heard oral argument concerning whether it has subject matter jurisdiction concerning this matter. After consideration of the parties’ written submissions and oral arguments, the court issues this memorandum of decision concerning subject matter jurisdiction.
I
Background
The plaintiff filed an application for prejudgment remedy of attachment and garnishment against the defendants Donna Dolloff, Executrix of the Estate of Barbara Goyette (Estate); Donna Dolloff, individually (the court refers to these defendants below as Dolloff); and 93 Prospect Hill Road, LLC (Prospect Hill). See #100.31. The plaintiff also seeks injunctive relief, prohibiting any further disposition or sale of property located at 93 Prospect Hill Road, East Windsor, Connecticut (property). See #100.32.
In the plaintiff’s proposed complaint, she alleges that defendant Dolloff entered into a purchase and sale contract with her for the sale of the property, with a closing date of June 1, 2017. She alleges that defendant Dolloff failed to effectuate the sale of the property to the plaintiff and fraudulently and intentionally misrepresented material facts and/or failed to disclose material facts to the plaintiff, including that Dolloff failed to disclose that she was entertaining additional offers to purchase the property, and concerning proceedings in the Greater Windsor Probate Court concerning sale of the property, which eventually resulted in the sale of the property to Prospect. The plaintiff alleges that Dolloff misused the plaintiff’s purchase agreement in order to stop a tax lien foreclosure action in the Superior Court and to buy herself additional time necessary to obtain higher bids for the property.
Her claims against defendant Dolloff include fraudulent/misrepresentation/nondisclosure (First Count); breach of fiduciary duty (Second Count), breach of contract (Fifth Count), and violation of the implied covenant of good faith and fair dealing (Sixth Count). Her claims against all defendants include tortious interference with contract (Third Count) and unjust enrichment (Fourth Count). In her prayer for relief the plaintiff seeks damages, interest, punitive damages, and attorneys fees and costs, as well as other and further relief as the court may deem equitable.
In its objection (#104), Prospect argues that the plaintiff’s claims are barred by res judicata as a result of her failure to appear in the Probate Court matter, failure to participate in the judicial bid process, and failure to appeal the Probate Court’s decision ordering sale of the property to Prospect, which deprives the court of subject matter jurisdiction. Prospect argues that plaintiff’s action seeks an "end-run around the appeal process." See Prospect’s objection, p. 3.
In addition, Prospect argues that the plaintiff’s claims against Prospect are barred by the absolute immunity afforded to parties in judicial proceedings, since Prospect purchased the property in accordance with a judicially sanctioned bid contest in the Probate Court. Prospect asserts that absolute immunity also deprives the court of subject matter jurisdiction.
At the hearing, Dolloff argued that the Probate Court was made aware of the prior offer to sell the property (See Prospect’s objection (#104), Exhibit 9, Probate Court order dated August 17, 2017), that actions taken on her behalf by her attorneys were sanctioned and approved by the Probate Court, and that the plaintiff should have appealed from the Probate Court decision.
The plaintiff filed a reply (#113) to Prospect’s objection. For the reasons set forth below the court concludes that it has subject matter jurisdiction.
II
Discussion
"Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ... The objection of want of jurisdiction may be made at any time ... [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention ... The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Frillici v. Westport, 264 Conn. 266, 280, 823 A.2d 1172 (2003).
"[O]nce 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 ..." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004).
"[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fort Trumbull Conservancy, LLC v. City of New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). "It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015).
A
Res Judicata
Based on the Probate Court’s August 22, 2017 order that the property was to be sold to Prospect, Prospect argues that the plaintiff’s claims are barred by res judicata, as plaintiff could have appeared in the Probate Court, could have submitted a revised bid for the property, and could have filed a claim against the Estate, asking the Probate Court to enforce the claimed contract. In addition, citing General Statutes § § 45a-186(b) (person aggrieved by Probate Court order may appeal therefrom to the Superior Court not later than thirty days after mailing of Probate Court order) and 45a-187(a) (where person has not been given notice, appeal shall be taken within twelve months), Prospect argues that the plaintiff could have appealed the Probate Court’s decision, but never did. As noted above, at the hearing, Dolloff also argued that the plaintiff should have filed an appeal.
In particular, Prospect relies on Corneroli v. D’Amico, 116 Conn.App. 59, 67, 975 A.2d 107, cert. denied, 293 Conn. 928, 980 A.2d 909 (2009), where, citing General Statutes § 45a-186(a), the Appellate Court stated, "A party appealing to the Superior Court from the Probate Court is required to commence the appeal by filing it with the Superior Court clerk within thirty days of the order, denial or decree of the Probate Court. Failure to do so deprives the Superior Court of subject matter jurisdiction and renders such an untimely appeal subject to dismissal." (Footnote omitted.)
As courts of limited jurisdiction, probate courts may not provide common-law tort remedies. Matters over which the Probate Courts have original jurisdiction are enumerated in General Statutes § 45a-98. "The Probate Court is a court of limited jurisdiction prescribed by statute, and it may exercise only such powers as are necessary to the performance of its duties. As a court of limited jurisdiction, it may act only when the facts and circumstances exist upon which the legislature has conditioned its exercise of power ... Such a court is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation ... By contrast, [t]he Superior Court of this state as a court of law is a court of general jurisdiction. It has jurisdiction of all matters expressly committed to it and of all others cognizable by any law court of which the exclusive jurisdiction is not given to some other court. The fact that no other court has exclusive jurisdiction in any matter is sufficient to give the Superior Court jurisdiction over that matter." (Citations omitted; footnote omitted; internal quotation marks omitted.) Geremia v. Geremia, 159 Conn.App. 751, 766-67, 125 A.3d 549 (2015).
General Statutes § 45a-98(a) provides, in relevant part: "Courts of probate ... shall have the power to (1) grant administration of intestate estates ... (2) admit wills to probate ... (3) ... determine title or rights of possession and use in and to any real, tangible or intangible property that constitutes, or may constitute, all or part of ... any decedent’s estate, or any estate under control of a guardian or conservator, which ... estate is otherwise subject to the jurisdiction of the Probate Court, including the rights and obligations of any beneficiary of the ... estate ... (4) ... construe the meaning and effect of any will or trust agreement ... (5) ... apply the doctrine of cy pres or approximation; (6) ... call executors, administrators, trustees, guardians, conservators ... and attorneys-in-fact acting under powers of attorney created in accordance with section 45a-562, to account concerning the estates entrusted to their charge; and (7) make any lawful orders or decrees to carry into effect the power and jurisdiction conferred upon them by the laws of this state."
"[W]here a Probate Court appeal and a Superior Court action are both instituted in the same matter, the latter will not be dismissed if it affords the plaintiff a remedy otherwise unavailable before the Probate Court ..." Kolodney v. Kolodney, 2 Conn.App. 697, 700, 483 A.2d 622 (1984).
"Neither § 45a-98 nor any other provision of the General Statutes vests the Probate Court with jurisdiction, exclusive or otherwise, over those actions sounding in tort." Geremia v. Geremia, supra, 159 Conn.App. 770. "Section 45a-98(b) expressly provides in relevant part that [t]he jurisdiction of courts of probate to determine title or rights or to construe instruments ... pursuant to subsection (a) of this section is concurrent with the jurisdiction of the Superior Court and does not affect the power of the Superior Court as a court of general jurisdiction.’ As this court has observed, § 45a-98(b) is a declaration that the Probate Court and the Superior Court are to have concurrent jurisdiction over matters involving title and rights to property ... Accordingly, while the Probate Court possesses jurisdiction to determine title or rights of possession and use regarding ‘any real, tangible or intangible property that constitutes, or may constitute’ part of [an] estate, that jurisdiction is not exclusive." (Citation omitted; footnotes omitted; internal quotation marks omitted.) Id., 771.
In Geremia v. Geremia, supra, 159 Conn.App. 751, as a result of a Probate Court decision, the defendants argued that the Superior Court lacked subject matter jurisdiction over the plaintiffs’ complaint due to the doctrines of res judicata and collateral estoppel. The Appellate Court concluded that "[t]hat proposition is untenable." Id., 771 n.15. The court noted that a "claim of res judicata does not implicate subject matter jurisdiction," id., and may be raised as a special defense and by motion for summary judgment. See id.
"[A]s a court of limited jurisdiction, the Probate Court is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation." (Internal quotation marks omitted.) Id., 772. "[C]laims for money damages and equitable relief against the defendant should be brought in a court of general, rather than limited, jurisdiction." "Indeed, [a] court of probate is unable to award damages." (Internal quotation marks omitted.) Id., 774.
In Geremia, the court also addressed claims of breach of fiduciary duty and unjust enrichment and concluded that claims for equitable and monetary relief, including punitive damages, which are also sought here, should be brought in a court of general jurisdiction, noting that the Probate Court does not have jurisdiction to award damages. See id., 776-77. Concerning unjust enrichment, a" ‘common-law’ doctrine [which] provides restitution, or the payment of money, when justice so requires ... [o]ur probate courts have no common-law jurisdiction[.]" (Citation omitted; internal quotation marks omitted.) Geremia v. Geremia, supra, 159 Conn.App. 777.
Accordingly, in view of the plaintiff’s common-law claims and claims for damages, the court concludes that this action is not an "end-run" around the Probate Court appeal process and res judicata does not deprive the court of subject matter jurisdiction.
B
Absolute Immunity
Prospect argues that it is not alleged that it engaged in conduct outside the Probate Court-supervised judicial proceeding and bidding process by which it obtained the property. Citing Tyler v. Tatoian, 164 Conn.App. 82, 87, 137 A.3d 801, cert. denied, 321 Conn. 908, 135 A.3d 710 (2016), where the court stated that the doctrine of absolute immunity concerns a court’s subject matter jurisdiction, Prospect argues that, to the extent the plaintiff’s claims against it are based on its participation in the Probate Court proceedings that led to the court-ordered sale of the property to Prospect, those claims are barred by the doctrine of absolute immunity.
As noted above, the plaintiff’s claims against Prospect are for tortious interference with contract (Third Count) and unjust enrichment (Fourth Count). As the Supreme Court explained in Rioux v. Barry, 283 Conn. 338, 343, 927 A.2d 304 (2007), "in the context of a quasi-judicial proceeding, absolute immunity does not attach to statements that provide the ground for the tort of vexatious litigation, but does bar a suit alleging that those same statements constituted an intentional interference with contractual or beneficial relations."
The complaint’s factual allegations concerning Prospect include that the plaintiff entered into a purchase agreement with Wiggin and Dana, LLP, the Probate Court approved the sale of the property to Wiggin and Dana, LLP, and Prospect became the record owner of the property on August 29, 2017. See complaint, all counts, ¶¶8, 10. In the Fourth Count, the plaintiff alleges that Dolloff and Prospect delayed and hindered the sale of the property to the plaintiff for their own financial benefit and were unjustly enriched.
"[T]he purpose of affording absolute immunity to those who provide information in connection with judicial and quasi-judicial proceedings is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements ... [T]he possibility of incurring the costs and inconvenience associated with defending a [retaliatory] suit might well deter a citizen with a legitimate grievance from filing a complaint ... Put simply, absolute immunity furthers the public policy of encouraging participation and candor in judicial and quasi-judicial proceedings. This objective would be thwarted if those persons whom the common-law doctrine [of absolute immunity] was intended to protect nevertheless faced the threat of suit. In this regard, the purpose of the absolute immunity afforded participants in judicial and quasi-judicial proceedings is the same as the purpose of the sovereign immunity enjoyed by the state ... As a result, courts have recognized absolute immunity as a defense in certain retaliatory civil actions in order to remove this disincentive and thus encourage citizens to come forward with complaints or to testify." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 627-28, 79 A.3d 60 (2013).
"[W]hether and what form of immunity applies in any given case is a matter of policy that requires a balancing of interests." (Internal quotation marks omitted.) Id., 630. Rather than consider certain enumerated factors which apply in all contexts, a court considering whether absolute immunity is applicable is directed to "consider ... the issues relevant to the competing interests in each case." Id., 630-31.
While Prospect argues that the privilege bars any cause of action brought by those dissatisfied with the outcome of a prior judicial proceeding, including claims for intentional interference with contractual or beneficial relations, it does not present analysis or discussion of a balancing of interests concerning a claim of unjust enrichment. "Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy ... Plaintiffs seeking recovery ... must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment." (Internal quotation marks omitted.) Geriatrics, Inc. v. McGee, 332 Conn. 1, 24-25, 208 A.3d 1197 (2019).
For example, in permitting vexatious litigation claims, which are not at issue here, the Supreme Court cited the "stringent requirements," which "add weight to the side of the balance that counsels against applying absolute immunity. Put differently, stringent proof requirements are relevant in determining whether absolute immunity should apply, but are not required to make that determination. (Emphasis in original.) MacDermid, Inc. v. Leonetti, supra, 310 Conn. 633.
In MacDermid, the Supreme Court expressly declined to adopt a litigation privilege protecting all conduct associated with judicial proceedings. See id., 639.
Here, as in MacDermid, the court concludes that, on balance, the interests in the present case weigh against applying absolute immunity. See id., 635. That some bidders for property may be deterred from bidding by the potential threat of a claim for unjust enrichment appears to be unlikely in view of the fact that, in most circumstances, no allegations could be made, such as are present here, that the property owner previously agreed to sell the property to another buyer. The risk of a chilling effect caused by the potential threat of litigation is de minimis and would potentially arise in a limited number of situations. See id., 635-36.
The court concludes that the plaintiff’s interest in vindicating her common-law right to seek civil redress in a tort action for damages outweighs Prospect’s interest, as a participant in the Probate Court proceeding, in attending hearings, and submitting a bid for the property. As to Prospect, absolute immunity does not deprive the court of subject matter jurisdiction.
As noted above, at the hearing Dolloff argued that the Probate Court was made aware of the prior offer to sell the property and that her actions were approved by the Probate Court. The plaintiff’s claims against Dolloff in the complaint are based, in substantial part, on alleged conduct which occurred prior to and/or outside of the Probate Court proceedings. Absolute immunity does not apply to conduct or statements not made in a judicial proceeding. See Fiondella v. City of Meriden, 186 Conn.App. 552, 562-63, 200 A.3d 196 (2018), cert. denied, 330 Conn. 961, 199 A.3d 20 (2019). In addition, the same reasoning discussed above concerning the balancing of interests applies to Dolloff, the alleged seller of the property. As to Dolloff, absolute immunity does not deprive the court of subject matter jurisdiction.
Accordingly, as stated above, the court concludes that it has subject matter jurisdiction and denies the request to dismiss the plaintiff’s claims against the defendants.