Opinion
No. CV 09 403 8147
December 8, 2009
Pertinent Facts
Plaintiffs Marlene and Jerome Rosen commenced this probate appeal by filing a complaint against the defendant, Marc Rosen, and the Probate Court, district of New Haven (Probate Court), on August 3, 2009. They allege the facts hereinafter articulated.
Marlene Rosen is the widow of Albert Rosen, and Jerome and Marc Rosen are his sons. There is a long history of acrimony and litigation between the parties. On October 30, 2008, the Probate Court appointed defendant Marc Rosen as successor trustee of the Albert Rosen Trust. The Probate Court, Keyes, J., denied the plaintiffs' petition to remove the defendant as successor trustee on July 15, 2009.
Judge Keyes wrote in relevant part:
Mr. Rosen was appointed when the movant did not appear for court, in a crisis, and the time period to reconsider has passed. He stepped up greatly when movement was needed, as "the file was a mess," as follows:
1.) Despite multiple attempts, the New York trust has not happened because of the recalcitrance of counsel, not Mr. Rosen.
2.) No rent collected from the tenant.
Indeed, Mr. Rosen promptly evicted the tenant and took possession of the demised premises, acting appropriately therein. He has liened the tenant's home in Forest Hills, and sued him for his fees. He has also loaned the trust money to get insurance.
There is no cause to remove him and the motion is denied.
The plaintiffs then filed the complaint, containing their reasons for appeal, with the Superior Court on August 3, 2009. In response, the defendant filed a motion to dismiss with an accompanying memorandum of law on September 2, 2009. The plaintiffs in turn submitted an objection to the motion with an accompanying memorandum of law on September 21, 2009 and a "corrected" version of the memorandum four days later. The matter was heard at short calendar on October 5, 2009. Following the short calendar hearing, the defendant submitted an October 5, 2009 supplement to his motion to which he attached a copy of the July 15, 2009 Probate Court decision.
Arguments and Analysis
As stated by our Supreme Court in State v. Goggin, 208 Conn. 606, 546 A.2d 250 (1988), "[t]he 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." Id., 615. "The proper vehicle to challenge an untimely appeal from probate is [therefore] a motion to dismiss." (Internal quotation marks omitted.) Zuckerman v. Zuckerman, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 00 0071541 (March 17, 2003, Moran, J.); see also Phinney v. Rosgen, 162 Conn. 36, 41, 291 A.2d 218 (1971) as to late filing and irregularity.
The defendant argues in his memorandum that the court lacks jurisdiction to consider the plaintiffs' appeal. Specifically, he focuses on the statement in paragraph four of the complaint that the October 30, 2008 successor trustee appointment is "the cause of the complaint" and refers to General Statutes § 45a-186(a), which establishes that "[a]ny 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 [not covered by a specific enumerated statute] in a court of probate, appeal therefrom to the Superior Court." He argues that the subject of the appeal is the October 30, 2008 appointment and that the appeal is untimely because § 45a-186(a) only allowed the plaintiffs to file their appeal between October 30 and November 30, 2008. In support of his motion, he cites Porto v. Appeal from Probate, Superior Court, judicial district of Waterbury, Docket No. CV 04 4002296 (September 7, 2005, Matasavage, J.), in which the court acknowledged the propriety of bringing a motion to dismiss on a statute of limitations basis in the probate appeal context.
The plaintiffs respond in their memorandum in opposition by arguing that the subject of the appeal is the July 15, 2009 denial of their petition for the defendant's removal as successor trustee and not the October 30, 2008 appointment. Their appeal is therefore appropriate and timely, they argue, because the August 3, 2009 filing date of the complaint is within thirty days of the mailing of the July 15 denial. In support of their objection, they first refer to General Statutes § 45a-242, which governs replacements of fiduciaries and does not set time limits on parties' abilities to pursue such action.
In addition to requiring that an appellant be aggrieved by a Probate Court decree, denial or order, § 45a-186(a) mandates that an appellant commence an action by filing a complaint in Superior Court that "state[s] the reasons for the appeal," accompanied by "[a] copy of the order, denial or decree appealed from." General Statutes § 45a-187 reinforces the time limitation in § 45a-186 by establishing that "[a]n appeal under section 45a-186 by persons of the age of majority who are present or who have legal notice to be present [at the proceeding in which the Probate Court issues the subject decree, denial or order] . . . shall be taken within thirty days." "[T]he statute fixing the time of appeal from a decree of the Probate Court is subject to the implied requirement that the court give notice of its decree before the thirty-day appeal period becomes operative." (Internal quotation marks omitted.) Hatt v. Burlington Coat Factory, 263 Conn. 279, 294, 819 A.2d 260 (2003). "In a probate appeal . . . the Superior Court's jurisdiction is . . . limited to the order appealed from. The issues presented for review are those defined in the reasons of appeal. The Superior Court cannot consider or adjudicate issues beyond the scope of those proper for determination by the order or decree attacked." Marshall v. Marshall, 71 Conn.App. 565, 570, 803 A.2d 919, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002); see also Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 486, 338 A.2d 497 (1973) ("An appeal from the Probate Court presents to the Superior Court only the order appealed").
The central issue in the present case is whether the Probate Court decree upon which the plaintiffs base their appeal is the October 30, 2008 successor trustee appointment or the July 15, 2009 denial of the removal petition. Per the requirement of § 45a-186(a), the plaintiffs have attached a copy of the July 15, 2009 denial to the complaint as Exhibit B. They have not done likewise with respect to the October 30, 2008 appointment. They have also framed their demand for relief at the end of the complaint in terms of their "belie[f] that the New Haven Probate Court abused its discretion in denying the motion to remove [the defendant] as trustee." As the defendant notes, paragraph four of the complaint reads, "[t]he New Haven Probate Court removed Attorney Anthony Wallace as trustee of the Albert Rosen Trust and appointed Marc Rosen as successor trustee on or about October 30, 2008, which decision is the cause of this complaint." Construing the allegations of the complaint in the manner most favorable to the pleader nonetheless allows for the conclusion that the July 15, 2009 denial is the Probate Court decree upon which the plaintiffs base their appeal.
The Court finds that the plaintiffs have complied with the requirements of §§ 45a-186(a) and 45a-187 because the August 3, 2009 filing date of the complaint was well within thirty days of July 15, 2009 — the date on the written version of the denial, exemplified by the copy of the denial attached to the complaint, as required by § 45a-186.
Conclusion
For the foregoing reasons, defendant Marc Rosen's Motion to Dismiss is denied.