Opinion
No. CV07 4022946 S
November 3, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS #110, MOTION TO DISMISS #105, MOTION TO DISMISS #106
The court has before it a motion to dismiss a probate appeal filed by Bruce Gordon, Esq., an interested party, as well as motions to dismiss filed by the named appellants seeking to dismiss an answer and a counterclaim filed by Gordon, in an alleged capacity as the attorney for the subject estate. The court will discuss and adjudicate each of these motions, in turn, within this memorandum of decision, for the sake of judicial economy.
The underlying action is an appeal from an order and decree of the Bridgeport Probate Court (Hall. J.) dated October 25, 2007, awarding the sum of $2,627.50 to Attorney Bruce Gordon in his capacity as Temporary Administrator of the Estate of Irene Pawelczyk, deceased. Gordon was originally appointed as the temporary administrator for the Pawelczyk Estate on August 12, 2004. On November 15, 2004, the probate court approved and admitted the decedent's Last Will and Testament to probate and appointed Linda A. Palmer as the Executrix of the estate. This appointment effectively terminated Gordon's appointment as temporary administrator. Gordon subsequently submitted several revised bills for his services as temporary administrator and eventually on $2,627.50, the court (Hall, J.) issued orders and a decree approving said amount. That is the order/decree that is the subject of this appeal. In its decree, the Probate Court overruled the objection to the granting of said fees, which had been filed by Linda Palmer, the Executrix of the Estate.
The appeal complaint, dated November 21, 2007, is signed by Linda A. Palmer, acting in an individual capacity, as well as, her capacity as Executrix, John M. Palmer and Diane K. Palmer. These parties are self-represented individuals. The named defendant-appellee listed on the court's file, is the Estate of Irene Pawelczyk, deceased. The complaint filed by the appellants is dated November 21, 2007. The complaint states that the appellants are aggrieved by the probate Court's orders. Linda Palmer's claims of aggrievement are based on her fiduciary capacity to defend against "improper claims" against the estate that would diminish the assets of the estate, and as a creditor because the improper claim would diminish assets that would prevent the estate from paying her Executrix's fees. John Palmer and Diane Palmer state they are aggrieved parties by virtue of being the sole beneficiaries and devisees of the estate. They allege that they are the primary source of payment of claims and expenses of the estate, as they allege there are no funds in said estate to make payment, and any fees granted would reduce what has been devised to them.
Linda M. Palmer alleges that her individual capacity "includes but is not limited to as creditor." John M. Palmer and Diane K. Palmer allege they are heirs at law and sole beneficiaries and devisees under the terms of the Last Will and Testament of the decedent. The plaintiff-appellants additionally note that Roman C. Pawelczyk, "not a party to the appeal" was bequeathed the sum of One Dollar ($1.00) per the terms of the Will.
For reasons discussed herein, the estate should not be listed as a defendant. As an appeal from probate taken by the fiduciary for the estate and others from an order of the probate court, the file would more appropriately be captioned In Re Palmer et al., Appeal from Probate.
Attached to the complaint is a certified copy of the Bridgeport Probate Court's decree, dated October 25, 2007, signed by Margot S. Hall, Acting Judge. The state marshal's return of service is also attached to the complaint. The return of service states that on November 26, 2007 the marshal made service by leaving a copy of the appeal with a clerk of the Bridgeport Probate Court and "afterwards in the City of Bridgeport, I left a copy of the Appeal with Bruce S. Gordon, Esq." Regarding the service on Gordon, the marshal's return does not specify in what manner he effectuated service on Gordon.
The chronological history of the pleadings is a confusing journey. The complaint is dated November 21, 2007. On January 16, 2008, Attorney Bruce Gordon, whose fee was approved by the probate court and was served with a copy of the subject appeal as an interested party. Thereafter, Gordon filed an answer and a counterclaim in response to the appeal complaint, signing both pleadings as legal counsel for the Estate of Pawelczyk. On March 4, 2008, Gordon filed the subject motion to dismiss the appeal, this time in an individual capacity as an interested party. The attorney filing the motion to dismiss in Gordon's behalf is Theresa Nickols, a member of Gordon's law firm, "Your Family Lawyer, LLC."
At the time of filing the answer, counterclaim and the motion to dismiss, neither Gordon, in a capacity as an attorney or as an individual, was listed in the court's record, as having filed an appearance. Gordon contends that he filed an appearance on January 15, 2008, at the time he filed the answer and counterclaim in behalf of the estate. However, he states that he later learned that his appearance was not accepted by the Clerk's office, as he was not a named defendant-appellee. Attorney Nickols who filed the motion to dismiss in Gordon's behalf, had also not filed an appearance at the time of the filing of the motion. Attorney Gordon's law firm, "Your Family Lawyer, LLC.," also had not filed an appearance. The court's file contains an appearance form for "Your Family Lawyer, LLC." dated March 12, 2008, which was filed with the Clerk of the Court on March 13, 2008. The appearance was filed in behalf of the defendant "Bruce Gordon for jurisdictional purposes only," and is signed by Bruce Gordon. A review of the Judicial Branch website by this court, reveals that the Judicial Branch website continues to reflect that no appearance has been filed in behalf of the estate by Gordon or anyone else. The website and court records also continue to reflect that Gordon is not a party to the present action as an individual and/or interested party, despite being served with a copy of the appeal complaint.
No appearance forms have been filed by the plaintiffs-appellants although each has affixed his/her signature to the appeal complaint, which was filed on November 21, 2007, the same day it was signed and dated by the plaintiffs-appellants.
The plaintiffs-appellants, in response to an answer and counterclaim filed by Gordon in behalf of the estate, have filed a motion to dismiss the answer and the counterclaim and an objection to Gordon's motion to dismiss.
The appellants have also filed a motion for summary judgment and a reply to Gordon's objection to that motion. The court's file and a review of the Judicial Branch website reveals that Gordon has filed no such objection to the motion for summary judgment as of this date.
In his motion to dismiss, Gordon argues that this court lacks subject matter jurisdiction and personal jurisdiction over him, to hear the appeal in that:
1. The appellants did not follow required statutory procedures relevant to the filing of an appeal from probate;
2. That there was a failure of process and an insufficiency of process;
3. The appellants failed to serve a writ of summons on parties to this action as required by General Statutes § 52-45a, and therefore failed to "bring in" the parties necessary to this action.
The appellants oppose the motion to dismiss arguing that the present appeal was filed pursuant to General Statutes § 45-186, as amended by Public Act 07-116, which became effective October 1, 2007. Further, the appellants argue that Gordon lacks standing to file a motion to dismiss in that he is not a named appellee.
The court heard oral arguments on all three motions to dismiss on July 21, 2008. At the time of the argument on Gordon's motion to dismiss, the court noted the appellants' motion to dismiss Gordon's counterclaim, as well as, their motion to dismiss Gordon's answer to the complaint. The court must determine the threshold questions addressed in Gordon's motion to dismiss the appeal first, before considering the issues surrounding dismissal of the answer and counterclaim filed by the appellants.
The appellants argue that Gordon has no legal authority or apparent authority to represent the Estate in this matter as legal counsel. Therefore, he cannot file an answer or a counterclaim in behalf of the estate. The appellants have moved to "dismiss" the answer and the counterclaim.
I Standard of Law A. Motion to Dismiss
"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.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). "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.) Daimler Chrysler Corp. v. Law, 284 Conn. 701, 711, 937 A.2d 675 (2007). "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 avenue; (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), citing Practice Book 10-31. "Jurisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court." (Internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179, 554 A.2d 728 (1989).
B. Subject Matter Jurisdiction
"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.) Bingham v. Dept. of Public Works, 286 Conn. 698, 701, 945 A.2d 927 (2008). See Practice Book § 10-33. "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." (Internal quotation marks omitted.) Vitale v. Zoning Board of Appeals, 279 Conn. 672, 678, 904 A.2d 182 (2006). "The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Citations omitted.) Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).
"[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "The burden rests with 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." (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004). "When . . . a court decides a jurisdictional question raised by a pretrial motion to dismiss, 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." (Internal quotation marks omitted.) Cox v. Aiken, supra, 278 Conn. 211.
C. Personal Jurisdiction
"Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Emphasis in original; internal quotation marks omitted.) Bridgeport v. Debek, supra, 210 Conn. 179-80. "One who is not served with process does not have the status of a party to the proceeding . . . A court has no jurisdiction over persons who have not been made parties to the action before it." (Internal quotation marks omitted.) Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 722, 826 A.2d 107 (2003). "When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction." (Internal quotation marks omitted.) Reiner, Reiner Bendett, P.C. v. Cadle Co., 278 Conn. 92, 109, 897 A.2d 58 (2006).
Practice Book §§ 10-30 and 10-32 "specifically and unambiguously [provide] that any claim of lack of jurisdiction over the person . . . is waived unless it is raised by a motion to dismiss filed within thirty days [of the date that the defendant filed its appearance, and] in the sequence required by Practice Book § 10-6 [which states the order in which pleadings must be filed] . . . Thus, thirty-one days after the filing of an appearance or the failure to adhere to the requisite sequence, a party is deemed to have submitted to the jurisdiction of the court." (Emphasis in original.) Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999).
D. Standing and Aggrievement
"[S]tanding . . . implicates a court's subject matter jurisdiction, which may be raised at any point in judicial proceedings." Stamford Hospital v. Vega, 236 Conn. 646, 656, 674 A.2d 821 (1996). "Standing is the legal right to set judicial machinery in motion . . . and implicates this court's subject matter jurisdiction . . . A party cannot rightfully invoke the jurisdiction of the court unless he [or she] 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 of the controversy . . . The burden rests with 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.) Payne v. TK Auto Wholesalers, 98 Conn.App. 533, 537-38 (2006), quoting Goodyear v. DiScala, supra, 269 Conn. 511. "The question of standing does not involve an inquiry into the merits of the case . . . It merely requires allegations of a colorable claim of injury to an interest that is arguably protected by [a] statute or common law." (Internal quotation marks omitted.) McGinty v. McGinty, 66 Conn.App. 35, 38, 783 A.2d 1170 (2001).
"Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate non-justiciable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Citations and internal quotation marks omitted.) West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 11 (2006).
"[T]he test for determining whether a party has been aggrieved by a Probate Court decision is whether there is a possibility, as distinguished from a certainty, that some legally protected interest that [the party] has in the estate has been adversely affected." (Internal quotation marks omitted.) McBurney v. Cirillo, 276 Conn. 782, 820-21, 889 A.2d 759 (2006), overruled on other grounds, 281 Conn. 277, CT Page 17428 914 A.2d 996 (2007). "The concept of aggrievement depends only on the existence of a cause of action upon which a party may rest his plea for relief. The issue of whether [a party] was aggrieved under [General Statutes] § 45-288 [now § 45a-186] by the actions of the Probate Court is to be distinguished from the question of whether, on a review of the merits, it will prevail. To examine the present issue the two parts of aggrievement need to be considered: (1) the nature of the appellant's interest, and (2) the adverse effect, if any, of the Probate Court's decision on that interest." (Citation omitted; internal quotation marks omitted.) Baskin's Appeal from Probate, 194 Conn. 635, 638, 484 A.2d 934 (1984). "This interest may be a direct pecuniary one, or it may consist of an injurious effect upon some legally protected right or status of the appellant . . . We have interpreted § 45a-186(a) to require that the decision of the Probate Court must have affected a party's interest in the estate in order for that party to have standing to appeal the court's order." (Citation omitted; internal quotation marks omitted.) McBurney v. Cirillo, supra, 276 Conn. 821.
"The responsibility for alleging a factual basis for aggrievement for the purpose of taking a probate appeal falls squarely on the person taking the appeal." Doyle v. Abbenante, 89 Conn.App. 658, 663, 875 A.2d 558 (2005), citing Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 516, 429 A.2d 967 (1980).
II Public Act 07-116 and Subject Matter Jurisdiction (As to the Appeal)
Gordon in his motion to dismiss as to subject matter jurisdiction argues that the appellants have failed to file a motion for appeal with the probate court that entered the order and have failed to follow statutory procedures in instituting this probate appeal. While this argument does accurately reflect the past status of the law, it no longer reflects the requirements for filing an appeal pursuant to General Statutes § 45a-186, as amended by Public Act 07-116, effective October 1, 2007.
A party seeking to appeal from an order or decree from a court of probate no longer must file a motion for appeal in the probate court that issued the order or decree. The taking of an appeal from the probate court is governed by General Statutes 45a-186. (Formerly Sec. 45-288), as amended recently by the passage of Public Act 07-116, which was effective on October 1, 2007. Public Acts 07-116, § 2, "repealed the then existing § 45a-186 governing appeals from probate and substituted revised, and substantially simplified, procedures for prosecuting appeals from probate." Gates v. Gates, Superior Court, judicial district of Ansonia-Milford at Derby, No. CV-08-4009454 (Aug. 8, 2008, Tyma, J.) 46 Conn. L. Rptr. 103. "The right to appeal from a decree of the Probate Court is purely statutory and the rights fixed by statute for taking and prosecuting the appeal must be met." State v. Goggin, 208 Conn. 606, 615, 547 A.2d 250. Therefore the court undertakes a review and analysis to determine if the appellants have satisfactorily complied with Public Act 07-116 in commencing this appeal.
Public Act 07-116, § 2, reads in relevant parts:
(a) Any person aggrieved by any order, denial or decree of a court of probate 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 court of probate, appeal therefrom to the Superior Court in accordance with subsection (b) of this section. Except in the case of an appeal by the state, such person shall give security for costs in the amount of one hundred fifty dollars, which may be paid to the clerk, or a recognizance with surety annexed to the appeal and taken before the clerk or a commissioner of the Superior Court . . . Such an appeal shall be commenced by filing a complaint in the superior court in the judicial district in which such court of probate is located . . . The complaint shall state the reasons for the appeal. A copy of the order, denial or decree appealed from shall be attached to the complaint. Appeals from any decision rendered in any case after a record recording is made of the proceedings under sections 17a-498, 17a-685, 45a-650, as amended by this act, 51-72 and or 51-73 shall be on the record and shall not be a trial de novo.
(b) Each person who files an appeal pursuant to this section shall serve a copy of the complaint on the court of probate that rendered the order, denial or decree appealed from and on each interested party. The failure of any person to make such service shall not deprive the Superior Court of jurisdiction over the appeal. Notwithstanding the provisions of section 52-50, service of the copy of the complaint shall be by state marshal, constable or an indifferent person. Service shall be in hand or by leaving a copy at the court of probate that rendered the order being appealed, or by leaving a copy at the place of residence of the interested party being served or at the address for the interested party on file with said court of probate . . .
(c) Not later than fifteen days after a person files an appeal under this section, the person who filed the appeal shall file or cause to be filed with the clerk of the Superior Court a document containing (1) the name, address and signature of the person making service, and (2) a statement of the date and manner in which a copy of the complaint was served on the court of probate and each interested party.
(d) If service has not been made on an interested party, the Superior Court, on motion, shall make such orders of notice of the appeal as are reasonably calculated to notify any necessary party not yet served.
A review of the record shows that the appellants filed their appeal from probate with the clerk of the court on November 21, 2007, which was within thirty days of the probate decree and order, which is dated October 25, 2007. The complaint states the reasons for the appeal, and a certified copy of the probate court's decree and orders appealed from is attached to the complaint. The appellants have given security for costs in the amount of two hundred fifty dollars, by way of a recognizance with surety annexed to the appeal, taken before an assistant clerk of the Superior Court.
Public Act 07-116 § 2(a) only requires the sum of "one hundred fifty dollars."
The marshal's return of service indicates that the marshal served a copy of the complaint on the Bridgeport Probate Court and Bruce Gordon on November 26, 2007. Thereafter, on December 3, 2007, not later than fifteen days after the filing of the appeal, the appellants filed with the clerk of the Superior Court a document containing a statement of the date of service and the names and addresses of the parties served. The statement is signed by the appellants. The state marshal's original return of service, bearing the marshal's signature is attached to said statement. This statement nor the original return of service indicate the address of the state marshal, as required by P.A. 07-116 § 2(c). The marshal's return of service does not indicate the manner in which he effectuated service on Gordon. The return of service only states that he served a clerk of the Bridgeport Probate Court at said court, "And afterwards in the City of Bridgeport, I left a copy of the Appeal with Bruce S. Gordon, Esq." The original return of service signed by the state marshal does not set forth that the service was in hand, at the residence of Gordon or at an address that Gordon had on file at the probate court. The statement signed by the appellants, to which the return is attached, however, states that the state marshal served Gordon at "Your Family Lawyer, LLC.," Suite G2, 140 John Street, Bridgeport, Connecticut."
In the recent decision of Gates v. Gates, supra, Superior Court, judicial district of Ansonia-Milford at Derby, No. CV-08-4009454 (Aug. 8, 2008, Tyma, J.), 46 Conn. L. Rptr 103, the court undertook an analysis of P.A. 07-116 in determining whether a probate appeal was timely filed within the statutory thirty-day time limitation from the date the Probate Court mailed its decision. The court found that pursuant to the language of P.A. 07-116, the appeal-complaint had to be filed with the superior court within thirty days, and that the action had not been commenced within said thirty days solely by the service of process on the probate court and/or interested parties within said time.
When viewing the text of the statute itself and its relationship to other statutes, including those referred to by the plaintiff, the meaning of the statute is plain and unambiguous. A party appealing to the superior court from probate is required to commence the appeal by filing the complaint with the court within thirty days of the mailing of the challenged action. The statute does not provide, as the plaintiff contends, that a probate appeal is timely commenced by serving the complaint upon the probate court and interested parties within those thirty days, as would be the case in an ordinary civil action . . . P.A. 07-116, § 2(b) expressly contemplates serving the complaint after it is filed with the court.
Id. See also Rocco v. Garrison, 268 Conn. 541, 553, 848 A.2d 352 (2004) ("[i]n Connecticut, an action is commenced when the writ, summons and complaint have been served upon the defendant"). The court in Gates v. Gates, supra, in acknowledging that a motion to appeal need no longer be filed and in analyzing how a probate appeal is to be commenced pursuant to Public Act 07-116, also noted that an appeal from probate is not a civil action that is governed by the rules of practice, statutory and other law pertaining to such actions. See, Silverstein's Appeal from Probate, 13 Conn.App. 45, 53, 534 A.2d 1223 (1987) ("An appeal from a probate order or decree to the Superior Court is not a civil cause of action. It has no more of the ordinary attributes of a civil action than the original proceedings in the court of probate."); see also Slattery v. Woodin, 90 Conn. 48, 50, 96 A. 178 (1915) ("[a]ppeals from probate are not `actions' or `civil causes or actions, between party and party'"); however, see Ackerman v. Sobol, Superior Court Judicial District of Hartford at Hartford, No. CV07-4027616S (Nov. 19, 2007, Elgo, J.) (Summary judgment is an appropriate vehicle in a de novo probate appeal).
"An appeal from a probate order or decree to the Superior Court is not a civil cause of action. It has no more of the ordinary attributes of a civil action than the original proceedings in the court of probate . . . [A]ppeals from probate are not civil actions because it has always been held that the Superior Court, while hearing appeals from probate, sits as a court of probate and not as a constitutional court of general or common-law jurisdiction. It tries the questions presented to it as novo, but in so doing it is . . . exercising a special and limited jurisdiction conferred on it by the statute authorizing appeals from probate . . ." (Citations omitted.) Marshall v. Marshall, 71 Conn.App. 565, 569, 803 A.2d 919 (2002). "It has long been established by the courts of this state that certain statutory proceedings are not "civil actions" within the meaning of title 52 of the General Statutes." Waterbury v. Waterbury Police Union, 176 Conn. 401, 407, 407 A.2d 1013 (1979). "[C]ontroversies in the Probate Court were not civil actions because these controversies did not fit within the definition of civil action as that term has traditionally been defined." Id., citing Slattery v. Woodin, supra, 90 Conn. 50.
"That pleadings after the reasons of appeal may thereafter follow in analogy to civil actions; Practice Book § 194; expresses the proper status of an appeal from probate, as a special proceeding authorized by statute, but not a civil action. Independently of the language of the rule, appeals from probate are not civil actions because it has always been held that the Superior Court, while hearing appeals from probate, sits as a court of probate and not as a constitutional court of general or common-law jurisdiction. It tries the questions presented to it as novo, but in so doing it is . . . exercising a special and limited jurisdiction conferred on it by the statute authorizing appeals from probate." (Citations omitted.) Silverstein's Appeal from Probate, supra, 13 Conn.App. 53-54.
Practice Book § 194 is now Practice Book § 10-76.
"The statutory notice requirements are not essential to probate appeals. Therefore, the failure to name an adverse party by notice in a probate appeal does not deprive the Superior Court of subject matter jurisdiction. The provision allowing an appeal confers upon the party aggrieved an absolute right of which he cannot be deprived by an omission of the Court of Probate. When the appeal is properly taken and allowed, the jurisdiction of the Superior Court over the cause attaches. That court, however, will not proceed with the appeal until all appellees have had notice of the appeal. Any defect in the notice should be corrected before trial." (Citations omitted.) Id. at 59; George v. St. Ann's Church, 182 Conn. 322, 324, 438 A.2d 97 (1980); Donovan's Appeal from Probate, 40 Conn. 154, 155-56 (1873); 1 W. Locke P. Kohn, Conn. Probate Practice 202, p. 414. The court finds that the appellants have complied with P.A. 07-116 in filing their appeal, despite minor defects regarding the statement required by P.A. 07-116 § 2(c). The defects in the statement are related to notice provisions, and any minor defects noted by the court do not implicate the court's subject matter jurisdiction. The court has the authority to make such orders of notice of the appeal as are reasonably calculated to notify a necessary party who was not yet served and any defects in notice could be cured in accordance with P.A. 07-116 § 2(d). Additionally, the court finds that the appellants have satisfactorily alleged sufficient facts to establish that they are aggrieved parties to the decree and orders of the probate court and that Gordon is an interested party. The appellants are entitled to pursue the appeal.
P.A. 07-116 § 2(d) provides:
(d) If service has not been made on an interested party, the Superior Court, on motion, shall make such orders of notice of the appeal as are reasonably calculated to notify any necessary party not yet served.
III Personal Jurisdiction (As to Gordon)
The court next addresses whether it has personal jurisdiction over Gordon by virtue of his being served with a copy of the appeal by the named appellants. In compliance with Public Act 07-116 § 2(b), the appellants served Gordon with a copy of the appeal/complaint viewing him as an interested party to this dispute regarding the Bridgeport Probate Court's decree and orders approving Gordon's fee as a temporary administrator of the Pawelczyk Estate. Gordon concedes he was served with a copy of the appeal by the state marshal. However, for reasons not entirely clear to the court, Gordon through, and by way of, his motion to dismiss is challenging the court's personal jurisdiction over him. Gordon maintains that he is not a named defendant, nor is he an interested party. He states that he has no real, legal or equitable right, title or interest in the subject matter of the controversy in either an individual or representative capacity. Goodyear v. Discala, supra, 269 Conn. 511. He further maintains he was not served by legal process consisting of a writ, summons or attachment . . ., as provided in General Statutes § 52-45a. Therefore, Gordon argues, the court lacks jurisdiction over him and has no authority to award a judgment against him. Comm. of Environmental Protection v. Conn. Building Wrecking Co., 227 Conn. 175 (1993).
Perhaps the confusion surrounding Gordon's position is evidenced by his stated belief that the former process for filing a probate appeal pursuant to General Statutes § 45-186 was in effect at the time this appeal was instituted, and also that he has status in this proceeding as a civil action defendant against whom a judgment could potentially be rendered. These beliefs are in error.
As discussed in the preceding section of this decision, the filing of this appeal was governed by the procedures set forth in Public Act 07-116 which repealed and amended General Statutes § 45-186, effective October 1, 2007. The court has already determined that the appellants complied with Public Act 07-116 in filing their appeal and serving notice on Gordon, as an interested party.
"An appeal from a Probate Court to the Superior Court is not an ordinary civil action." Kerin v. Stangle, 209 Conn. 260, 263, 550 A.2d 1069 (1988), quoting Slattery v. Woodin, supra, 90 Conn. 50-51; Silverstein's Appeal from Probate, supra, 13 Conn.App. 52-53. Rather, it has been clothed with "very definite characteristics which mark it as a thing peculiar unto itself . . ." Id., quoting 1 W. Locke P. Kohn, Connecticut Probate Practice 186.
Appeals from probate are not "actions" or "civil causes or actions, between party and party." (Emphasis added.) Slattery v. Woodin, supra, 90 Conn. 50. Those interested persons made parties to appeal by order of notice have right to appear and defend. Brewster v. Shelton, 24 Conn. 140, 146. (1855) (appeal from decree of probate court). "[A] court may refuse to proceed with litigation if a claim cannot properly be adjudicated without the presence of those indispensable persons whose substantive rights and interests will be necessarily and materially affected by its outcome . . . Joinder of indispensable parties is mandated because due process principles make it essential that [such parties] be given notice and an opportunity to protect [their] interests by making [them] a party to the [action]." (Citations omitted; internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 289-90, CT Page 17435 914 A.2d 996 (2007); Hilton v. New Haven, 233 Conn. 701, 722-23, 661 A.2d 973 (1995).
"[A]n essential function of notice is to enable the recipient to choose for himself whether to appear or default, acquiesce or contest . . . with regard to proceedings affecting the recipient's interests. The fundamental reason for the requirement of notice is to advise all affected parties of their opportunity to be heard of the relief sought . . . Adequate notice will enable parties having an interest to know what is projected and, thus, to have an opportunity to protest . . . [N]otice . . . is not required to contain an accurate forecast of the precise action which will be taken on the subject matter referred to in the notice. It is adequate if it fairly and sufficiently apprises those who may be affected of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing . . ." (Citations omitted; internal quotation marks omitted.) Cornelius v. Dept of Banking, 94 Conn.App. 547, 554 (2006); 162 Conn. 89, 110, 291 A.2d 721 (1971).
Public Act 07-116 § 2(b) required the appellants to serve a copy of the appeal on Gordon as an interested party and they correctly and properly did serve Gordon in compliance with the procedures set forth in Public Act 07-116 as discussed earlier herein. It was logical for the appellants to conclude that Gordon is an interested party, as the subject of the appeal is the granting of a temporary administrator's fee to Gordon by the decree and order of the Bridgeport Court. It is logical to assume that Gordon would wish to defend the granting of his fee against the claims of the appellants who objected to the fee award by the probate court. Once served and made a party to the appeal, however, Gordon has the option to choose for himself whether to appear, defend and contest against the appeal or to not appear and contest the proceedings affecting his pecuniary interests. See Cornelius v. Dept. of Banking, supra, 94 Conn.App. 547.
Gordon has standing to defend and contest the appeal in his individual capacity as an interested party whose pecuniary interests are at stake. The fact that Gordon now steps forth and claims he is not an interested party is a matter to be considered by the trier of fact in the de novo trial when determining the merits of the appeal. His protestations, while seemingly illogical given his pecuniary interest, do not defeat the court's personal jurisdiction over him. If Gordon is not interested in the proceedings, he may choose not to appear or defend against the allegations contained in the appeal from probate. Accordingly, the court denies Gordon's motion to dismiss the appeal as to subject matter and personal jurisdiction, which is dated March 4, 2008.
IV Motion to Dismiss the Answer
The appellants have moved to dismiss an answer to the appeal complaint which was filed by Gordon on January 16, 2008, in behalf of the Estate of Irene Pawelczyk. As noted earlier herein, Gordon was originally appointed as the Temporary Administrator for said estate. Gordon was originally appointed as the temporary administrator for the Pawelczyk Estate on August 12, 2004. On November 15, 2004, the probate court approved and admitted the decedent's Last Will and Testament to probate and appointed Linda A. Palmer as the Executrix of the estate. This appointment effectively terminated Gordon's appointment as temporary administrator.
The appellants argue that the answer should be dismissed due to a lack of subject matter jurisdiction, stating that Gordon cannot appear in any fiduciary capacity for the estate, and further, neither the estate nor its executrix has engaged his services to represent the estate in this appeal from probate. Gordon does not contest that he does not act in any fiduciary capacity for the estate at this time or at the time he filed the answer to the appeal complaint designating himself as the estate's representative and/or attorney. Gordon is an interested party to the appeal and may file an answer to the appeal complaint in his individual capacity as an interested party if he chooses to do so.
The erroneous filing of the subject answer does not implicate the court's jurisdiction and therefore a motion to dismiss cannot be granted. As the contested pleading is an answer, it can be stricken for a lack of legal sufficiency according to Practice Book § 10-39(a)(5). The answer is inoperative and invalid, as it was signed and filed by Gordon in behalf of the estate when he had no apparent or actual authority, legal or otherwise, to sign and file an answer in behalf of the estate. The answer is legally insufficient and the court hereby orders the answer dated January 16, 2008 stricken.
Practice Book § 10-39(a) regarding a motion to strike reads as follows:
(a) Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint, or (3) the legal sufficiency of any such complaint, counterclaim or cross complaint, or any count thereof, because of the absence of any necessary party or, pursuant to Section 17-56(b), the failure to join or give notice to any interested person, or (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts, or (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof.
V Motion to Dismiss Counterclaim
On January 15, 2008, at the time Gordon filed the disputed answer to the appeal complaint, he also filed a counterclaim, again signing the pleading as "the defendant, Estate of Pawelczyk" by Bruce S. Gordon, Esq. "Your Family Lawyer, LLC." As determined herein, Gordon was operating under no apparent, actual or legal authority when he filed this counterclaim in behalf of the estate.
When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate. Satti v. Rags, 186 Conn. 360, 365, 441 A.2d 615 (1982); Hewitt's Appeal from Probate, 53 Conn. 24, 35, 1 A. 815 (1885); Davis's Appeal from Probate, 39 Conn. 395, 400 (1872). In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common-law jurisdiction, but of a Probate Court. Slattery v. Woodin, supra; Tolle's Appeal from Commissioners, 54 Conn. 521, 524 9 A. 403 (1886); Silverstein's Appeal from Probate, supra, 53. "The function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo. Baskin's Appeal from Probate, 194 Conn. 635, 641, 484 A.2d 934 (1984); Satti v. Rago, supra, 186 Conn. 364-65; Stevens' Appeal, supra, 157 Conn. 580-81; Hotchkiss' Appeal, 89 Conn. 420, 432, 95 A.26 (1915); Silverstein's Appeal from Probate, supra, 13 Conn.App. 54." Kerin v. Stangle, supra, 209 Conn. 263-64. Thereafter, upon "consideration of all evidence presented on the appeal which would have been admissible in the probate court, the superior court should exercise the same power of judgment which the probate court possessed and decide the appeal as an original proposition unfettered by, and ignoring, the result reached in the probate court." Prince v. Sheffield, 158 Conn. 286, 298, 259 A.2d 621 (1969); Andrews v. Gorby, 237 Conn. 12, 16, 675 A.2d 449 (1996).
Addressing the counterclaim filed by Gordon in the estate's behalf, it should be noted that when the Superior Court takes an appeal from the Probate Court, the Superior Court does not exercise its general powers in law and equity but sits only exercising the powers of a probate court. Hewitt's Appeal, supra, 53 Conn. 35. This counterclaim could not have been entertained in the probate court. Additionally, "Practice Book § 116 permits counterclaims only "in any actions for legal or equitable relief. This is an appeal from probate, and therefore, the court has no subject matter jurisdiction to hear this counterclaim. Zanoni v. Pikor, Superior Court, judicial district of Hartford-New Britain at Hartford, No. CV93 520372S (Aug.23, 1994, Corradino, J.). Accordingly, the counterclaim is ordered dismissed for a lack of subject matter jurisdiction.
Former Practice Book (1978-1997) § 116 is now Practice Book § 10-10, which reads as follows:
Supplemental pleadings showing matters arising since the original pleading may be filed in actions for equitable relief by either party. In any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff and cross claims against any co-defendant provided that each such counterclaim and cross claim arises out of the transaction or one of the transactions which is the subject of the plaintiff's complaint; and if necessary, additional parties may be summoned in to answer any such counterclaim or cross claim. A defendant may also file a counterclaim or cross claim under this section against any other party to the action for the purpose of establishing that party's liability to the defendant for all or part of the plaintiff's claim against that defendant.
Court's Orders
Motion to Dismiss #110 is granted. The motion to dismiss #105 (answer) is denied. However, the answer is hereby ordered stricken by the court for the reasons set forth herein. The motion to dismiss #106 (counterclaim) is granted. Additionally, the court hereby orders the Clerk's office to accept any appearance form filed by Bruce Gordon or by his legal counsel, in behalf of Gordon as an individual, as he is an interested party to this appeal. He has standing to appear as an interested party. Furthermore, the court advises the Clerk's office that this matter is more properly designated as In Re: Palmer et al., Appeal from Probate, Docket No. CV07 402 29 46 S. The court's files should not continue to designate the estate as a party defendant, and shall not list Gordon as party defendant. Gordon is an individual interested party.