Opinion
MMXCV166016389
05-10-2017
Jeanne Montross v. Edward Cassella, Esq., Executor of the Estate of Richard Montross et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTIONS TO DISMISS (#105, #107 AND #110)
Julia L. Aurigemma, J.
The defendants, Edward Cassella (Motion #105), The Nature Conservancy (Motion #107), and Gary Jordan (Motion #110), have moved to dismiss the complaint in this action. The plaintiff objects to the dismissal.
Factual and Procedural History
The plaintiff, Jeanne Montross, commenced this action by filing the complaint on September 29, 2016, against the defendants Edward Cassella, the Nature Conservancy, and Gary Jordan. The plaintiff's complaint alleges the following facts. The decedent, the plaintiff's brother, died intestate on January 14, 2016. The plaintiff has retired and moved to Florida where she has a physical address and a mailing address, both in The Villages, Florida. On January 21, 2016, Attorney Cassella, as the petitioning fiduciary, filed the Application for Probate and presented the last will and testament of the decedent. Cassella identified the plaintiff as an heir, but incorrectly listed the plaintiff's address. The Probate Court mailed the notice to admit the will to probate, dated January 26, 2016, to an incorrect address. On February 9, 2016, the will was admitted by the Probate Court, Forgione, J., and Attorney Cassella was approved as executor of the estate. The plaintiff received a copy of the decree on February 18, 2016, which was also improperly addressed, at the second mailbox. Thereafter, the plaintiff notified the Probate Court of her correct address.
The plaintiff filed an application to reconsider and to revoke the decree on June 7, 2016, under Connecticut General Statutes § 45a-128. The Probate Court requested briefs limited to the issue of whether the plaintiff had received legal notice. The Probate Court, Marino, J., denied the application on August 31, 2016.
The plaintiff filed her appeal of the Probate Court's denial of her application to revoke and reconsider on the ground that the Probate Court improperly determined that (1) she received legal notice at her residence 1350 Augustine Dr., Lady Lake, Florida; (2) the plaintiff did receive legal notice of the petition to admit the will to probate; (3) the January 26, 2016 notice was proper notice to the plaintiff of her right to request a hearing by February 8, 2016, or alternatively, to appear in Probate Court on February 9, 2016; and (4) the Probate Court erred in its failure to examine whether Attorney Cassella met his burden as the petitioning fiduciary to use reasonable efforts to correctly identify the heirs of the Estate.
Discussion of the Law and Ruling
" [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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). " A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process . . . Any defendant, wishing to contest the court's jurisdiction, shall do so by filing a motion to dismiss within thirty days of the filing of an appearance." Practice Book § 10-30.
" [B]ecause the issue of standing implicates subject matter jurisdiction, it may be a proper basis for granting a motion to dismiss." Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413, 35 A.3d 188 (2012). " The 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). " If . . . the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed." (Footnote omitted; internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).
Count One
Connecticut General Statutes § § 45a-128(a) and (b) state in relevant part " any order or decree made by a court of probate ex parte may, in the discretion of the court, be reconsidered and modified or revoked by the court. Reconsideration may be made on the court's own motion or, for cause shown satisfactory to the court, on the written application of any interested person . . . Such application shall be made or filed within one hundred twenty days after the date of such order or decree and before any appeal is allowed or after withdrawal of all appeals. The court may reconsider and modify or revoke any such order or decree . . . for failure to provide legal notice to a party entitled to notice under law . . ." Connecticut General Statutes § 45a-186 provides in relevant part " [e]xcept as provided in sections 45a-187 and 45a-188, any person aggrieved by any order, denial or decree of a Probate Court in any matter, unless otherwise specially provided by law, may . . . not later than thirty days after mailing of an order, denial or decree for any other matter in a Probate Court, appeal therefrom to the Superior Court." Connecticut General Statutes § 45a-187(a) extends the time for filing an appeal to twelve months for " such persons have no notice to be present and are not present, or have not been given notice of their right to request a hearing . . ."
The defendants collectively argue that the appeal is time barred because the plaintiff did not file an appeal within thirty days of the February 9, 2016 decree. The defendants similarly argue that the plaintiff is not entitled to the lengthier appeal period proscribed by § 45a-187 because she received actual notice of the February 9, 2016 decree, and therefore, she is not ex parte. The Nature Conservancy similarly argues that § 45a-128 does not toll the appeal period. This argument is unavailing as the plaintiff is not attempting to toll the appeal period.
The defendants argue that the plaintiff's appeal is time barred because she filed the appeal more than thirty days after the February 9, 2016 decree. However, the plaintiff filed her appeal on the basis of Judge Marino's denial of her application to reconsider and revoke. The denial was entered on August 31, 2016. The plaintiff filed her appeal within thirty days of the denial. The denial of an application filed under § 45a-128 itself is appealable, as it is " any order, denial or decree of a Probate Court in any matter." Connecticut General Statutes § 45a-186; see also Frank v. Estate of Frank, Superior Court, judicial district of Middlesex, Docket No. 66226 (December 22, 1992, Walsh, J.) (8 Conn.L.Rptr. 118, ) (holding that appeals period commenced on date Probate Court sent letter to plaintiff stating that her application for reconsideration under § 45a-128 would not fully adjudicate issues and Probate Court would not move forward on the motion, effectively denying motion to reconsider).
This case is distinguishable from Bandonee v. State, Superior Court, judicial district of New Haven, Docket No. CV-16-5037067-S (November 17, 2016, Wilson, J.) (63 Conn.L.Rptr. 400, ). In Bandonee, the court held that filing a motion to reconsider does not toll the appeals period because § 45a-186 lacks language that tolls the appeals period after a motion to reconsider had been filed. Although the plaintiff attached the denial of her motion to reconsider to her complaint, the court noted that the basis of her appeal was the Probate Court's original decision, denying her application for conservatorship, and not on the denial of her motion to reconsider. In the present case, the plaintiff is appealing the denial of her motion to reconsider, not the February 9, 2016 decree, and arguing that the Probate Court improperly determined she had legal notice of Cassella's application to admit the will to probate.
The plaintiff filed her application to reconsider and revoke under § 45a-128 within 120 days of the February 9, 2016 decree. The Probate Court issued its denial on August 31, 2016, and the plaintiff filed her appeal of the denial on September 29, 2016, within the thirty-day appeals period. Therefore, the motion to dismiss Count One is denied.
Count Two
The Nature Conservancy and Jordan move to dismiss Count Two on the ground that it impermissibly enlarged the issues on appeal. These defendants incorrectly presume that the request for an accounting is part of the appeal and not joined with it. See Loomis v. Lupoli, Superior Court, judicial district of New Haven, Docket No. CV-116018843-S (September 28, 2011, Wilson, J.) [52 Conn.L.Rptr. 671, ]. Specifically, the court noted in Loomis that " [t]hough the complaint could have been more carefully pleaded, the allegations of count two set forth a distinct . . . action that is separate from the appeal. Indeed, while count one is labeled 'Appeal from Probate, ' count two is conspicuously not labeled . . ."
" Loomis does not do anything jurisdictionally improper by bringing a civil action and a probate appeal together in the same lawsuit. [A] plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint. Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985)." (Internal quotation marks omitted.) Id.; see also Shenkman v. Fenwick Historic District Commission, Superior Court, judicial district of Middlesex, Docket No. CV-03-0102997-S (July 26, 2004, Silbert, J.) [37 Conn.L.Rptr. 545, ] (holding administrative appeal and separate civil action were appropriately brought in one action, especially " [i]f [the cases] could be consolidated, there is no reason why they could not be brought as a single lawsuit"). Similarly, the plaintiff has not done anything improper by joining her request for an accounting, a civil action, to her probate appeal.
The defendants argue that the court does not have primary jurisdiction over the request for an accounting as the Probate Court has original jurisdiction, therefore, the court should grant the motions to dismiss Count Two as this court lacks subject matter jurisdiction. The plaintiff counters in her opposition that this court exercises concurrent jurisdiction over requests for an accounting, and therefore, has subject matter jurisdiction.
Connecticut General Statutes § 45a-175(d) provides in relevant part that " [a]ny of the persons specified in [General Statutes § ]1-350o may make application to the Probate Court . . . for an accounting or other relief as provided in section 1-350o. The court shall grant the petition if filed by the principal, agent, guardian, conservator or other fiduciary acting for the principal. The court may grant a petition filed by any other person specified in section 1-350o if it finds that (1) the petitioner has an interest sufficient to entitle him to the relief requested, (2) cause has been shown that such relief is necessary, and (3) the petition is not for the purpose of harassment."
" Although the General Statutes vest jurisdiction in the Probate Court to the extent provided for in section 45a-175, [to] call executors, administrators, trustees, guardians, conservators, persons appointed to sell the land of minors, 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; General Statutes § 45a-98(a)(6); the jurisdiction of the Probate Court to order an accounting by those specified fiduciaries pursuant to General Statutes § § 45a-98(a)(6) and 45a-175 is not exclusive." (Citation omitted; internal quotation marks omitted.) Geremia v. Geremia, 159 Conn.App. 751, 775-76, 125 A.3d 549 (2015). " [W]hile the language of [§ ]45a-175 clearly bestows jurisdiction upon [P]robate [C]ourts to handle accounts . . . nothing in the language of this section evidences any intention to abrogate the jurisdiction of the [S]uperior [C]ourt over actions of accounting . . . Therefore, it is clear that [t]he Probate Courts and the Superior Courts exercise concurrent jurisdiction over accountings by persons acting under powers of attorney." (Citation omitted; internal quotation marks omitted.) In the Matter of Mary E. Bachand, 306 Conn. 37, 59-60 n.9, 49 A.3d 166 (2012); accord Dettenborn v. Hartford-National Bank & Trust Co., 121 Conn. 388, 391-92, 185 A. 82 (1936) (" [t]he jurisdiction of Courts of Probate to pass upon the accounts of a testamentary trustee is not, however, exclusive, and courts of general jurisdiction may entertain actions against trustees for breaches of their duty, the jurisdiction of the two courts being concurrent").
In sum, the court has concurrent jurisdiction over accountings by persons acting under powers of attorneys, which means the plaintiff, in the present case, could have brought this count in either the Probate Court or this court.
Jordan argues that the plaintiff lacks the statutory standing required to request an accounting under § 45a-175. The plaintiff counters that under Connecticut's adoption of the Uniform Power of Attorney Act, she would have standing, as the act includes the class of presumptive heirs. Connecticut General Statutes § 1-350o, as amended by Public Acts 2016, No. 40, § 9, now provides in relevant part " [t]he following persons may petition a court in accordance with subsection (d) of section 45a-175 to construe a power of attorney or review the agent's conduct, and grant appropriate relief . . . (5) an individual who would qualify as a presumptive heir of the principal . . ." It is undisputed that the plaintiff was identified as an heir when Attorney Cassella filed his application to admit the will to probate.
For the foregoing reasons, the motion to dismiss Count Two is denied.