Opinion
No. CV 09-4038147 S
April 16, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#113)
FACTUAL AND PROCEDURAL BACKGROUND
The plaintiffs, Marlene and Jerome Rosen, commenced this 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 following facts in the complaint. Marlene Rosen is the widow of Albert Rosen, and Jerome Rosen and the defendant are his sons. There is a long history of acrimony and litigation between the parties. The Albert Rosen Irrevocable Trust (trust) was established by an indenture dated May 16, 1994. The defendant was named as trustee. The asset at issue is a gas station located at 6001 Church Avenue, Brooklyn, New York (Brooklyn gas station). The trust transferred title in the Brooklyn gas station to the R. Morris Limited Partnership (partnership) on November 22, 1996. The defendant is the general partner of the partnership in his individual capacity and the limited partner in his trustee capacity. In January 2000, Albert Rosen sued the defendant in New York Supreme Court, Kings County, seeking the revocation of both the trust indenture and the partnership agreement (New York litigation). The Probate Court, Keyes, J., removed the defendant as trustee and named Anthony Wallace as successor trustee on April 18, 2002.
General Statutes § 45a-186 requires that "[s]uch 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 New York litigation was settled by a court stipulation dated January 10, 2003. The stipulation provided that a new trust would be established. The partnership would transfer its title in the Brooklyn gas station to the new trust. Marlene Rosen would receive a life estate in the Brooklyn gas station, and Jerome Rosen and the defendant would be named as remaindermen in equal shares. The Rosen Family Trust Agreement (new trust agreement) was dated January 5, 2006. It was signed by Wallace as trustee and the defendant in his general partner capacity. It was not signed, however, by the proposed trustee for the new trust, because the defendant refused to accept minor language changes to the new trust agreement that she requested. On August 1, 2008, the defendant executed a "Revocation of Agreement," which stated that the partnership was revoking its consent to the new trust agreement.
The Probate Court removed Wallace as trustee and appointed the defendant as successor trustee on October 30, 2008 and, on July 15, 2009, the Probate Court, (Keyes, J.), denied the plaintiffs' petition to remove the defendant. The plaintiffs then initiated the present action in the Superior Court on August 3, 2009. On September 2, 2009, the defendant filed a motion to dismiss on the ground that the plaintiffs untimely filed their appeal under General Statutes § 45a-186. The court, Jones, J., denied the motion on December 8, 2009. The defendant filed an amended answer to the complaint on February 23, 2010 and the present motion to dismiss, accompanied by a memorandum of law, on March 2, 2010. The plaintiffs filed an objection to the present motion and an accompanying memorandum of law on March 10, 2010. The court heard the matter at short calendar on March 22, 2010. During oral argument, the plaintiffs stated that the Probate Court held a hearing regarding the parties' dispute over the defendant's trustee fees for the sale of the Brooklyn gas station on March 19, 2010.
DISCUSSION
"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). "When a [trial] 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.) State v. Marsh McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315 (2008).
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002). "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 . . ." Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).
"[J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter . . . A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction." (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86, 952 A.2d 1 (2008). "Mootness is a threshold issue . . . which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties . . . Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties." (Internal quotation marks omitted.) Wilcox v. Ferraina, 100 Conn.App. 541, 547-48, 920 A.2d 316 (2007).
"It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow . . . An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal . . . When . . . events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." (Internal quotation marks omitted.) Ann Stanley's Appeal from Probate, 80 Conn.App. 264, 267, 834 A.2d 773 (2003).
Mootness affects whether a trial court has subject matter jurisdiction over a probate court appeal. See, e.g., Vrendenburgh v. Norwalk Probate Court, 118 Conn.App. 436, 984 A.2d 773 (2009) (affirming trial court dismissal of probate court appeal that was moot because plaintiffs disputed appointment of defendant temporary conservator, who became permanent conservator during appeal); Schiavone v. Snyder, 73 Conn.App. 712, 812 A.2d 26 (2002) (affirming trial court dismissal of probate court appeal that was moot because plaintiff disputed approval of interim account, which was superseded by approval of final account that plaintiff did not appeal); Otis T. Bradley's Appeal from Probate, 19 Conn.App. 456, 563 A.2d 1358 (1989) (affirming trial court's holding that one part of plaintiff's probate court appeal was moot where plaintiff disputed appointment of temporary administrator, who resigned shortly after plaintiff initiated appeal).
"As a general matter, when a decision of the Probate Court is appealed to the Superior Court, a trial de novo is conducted." In re Joshua S., 260 Conn. 182, 199, 796 A.2d 1141 (2002). "An appeal from probate is not so much an `appeal' as a trial de novo with the Superior Court sitting as a Probate Court and restricted by a Probate Court's jurisdictional limitations." (Citation omitted.) Gardner v. Balboni, 218 Conn. 220, 225, 588 A.2d 634 (1991). "[I]n an appeal from probate, the trial court exercises the right to make an independent and de novo determination of the issue involved, without regard to the result reached by the Probate Court." (Internal quotation marks omitted.) In re Joshua S., supra, 260 Conn. 199. "[T]he informalities of the probate proceeding are corrected by permitting a full hearing in which new evidence may be submitted." Thomas v. Arafeh, 174 Conn. 464, 470, 391 A.2d 133 (1978). Specifically, the court "may receive evidence that could have been offered in the Probate Court, whether or not it actually was offered." Gardner v. Balboni, supra, 218 Conn. 225.
The defendant argues that the plaintiffs' appeal is moot because most of their reasons for appeal are based on the handling of the Brooklyn gas station, which was sold on February 5, 2010. He also notes that Marlene Rosen, substituted as plaintiff in her capacity as temporary administratrix of Albert Rosen's estate, withdrew from the New York litigation on December 22, 2009. According to the defendant, because the Brooklyn gas station is now owned by an uninvolved third party, the court is unable to compel the defendant to perform in accordance with the January 10, 2003 court stipulation, which is the relief sought by the plaintiffs in the present action. The defendant also argues that the plaintiffs have failed to allege any of the four grounds recognized by General Statutes § 45a-242 as reasons for a probate court to remove a fiduciary. The defendant further argues that the doctrine of res judicata bars the court from considering events that occurred before the defendant's October 30, 2008 appointment as successor trustee. According to the defendant, the plaintiffs have not appealed the October 30, 2008 appointment, and therefore, the Probate Court's consideration of all of the claims involved therein is final and not subject to further litigation.
General Statutes § 45a-242(a) provides in relevant part: "The court of probate having jurisdiction may, upon its own motion or upon the application and complaint of any person interested or of the surety upon the fiduciary's probate bond, after notice and hearing, remove any fiduciary if: (1) The fiduciary becomes incapable of executing such fiduciary's trust, neglects to perform the duties of such fiduciary's trust, wastes the estate in such fiduciary's charge, or fails to furnish any additional or substitute probate bond ordered by the court, (2) lack of cooperation among cofiduciaries substantially impairs the administration of the estate, (3) because of unfitness, unwillingness or persistent failure of the fiduciary to administer the estate effectively, the court determines that removal of the fiduciary best serves the interests of the beneficiaries, or (4) there has been a substantial change of circumstances or removal is requested by all of the beneficiaries, the court finds that removal of the fiduciary best serves the interests of all the beneficiaries and is not inconsistent with a material purpose of the governing instrument and a suitable cofiduciary or successor fiduciary is available."
The plaintiffs counter that the appeal is not moot. First, they contend that the relief they seek, the defendant's removal from the trustee position, can still be provided by the court. Second, they argue that the issue of the defendant's fitness to serve as trustee is still justiciable because there are questions about distributing and investing the profits from the sale of the Brooklyn gas station. Finally, they contend that there is a "conflict of interest" ground for removing a fiduciary that is independent of § 45a-242, and this ground is viable in this case because of the pending Probate Court proceedings involving the defendant's trustee fees. The defendant argues in turn that the court cannot consider the fees dispute because it has not been decided by the Probate Court and therefore is not ripe for review. Specifically, the defendant contends that the court's jurisdiction over the present action is statutory, and the relevant statute, § 45a-186, establishes that a trial court may only consider a probate court matter when a decree, denial or order has been issued.
Section 45a-186 specifically provides in relevant part: "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 [not covered by a specific enumerated statute] in a court of probate, appeal therefrom to the Superior Court."
As a preliminary matter, the court will first address the defendant's res judicata argument, the defendant's argument regarding the plaintiffs' failure to cite to any of the removal grounds listed in § 45a-242 and the plaintiffs' argument regarding the relevance of the fees dispute to the present action. The court will not consider the defendant's res judicata argument because res judicata is a special defense, not a ground for dismissal. As the Supreme Court concluded in Labbe v. Pension Commission, 229 Conn. 801, 816, 643 A.2d 1268 (1994), "[r]es judicata does not provide the basis for a judgment of dismissal; it is a special defense that is considered after any jurisdictional thresholds are passed." See also Practice Book § 10-50 (listing res judicata as special defense).
Defendants' counsel submitted a supplemental brief dated March 23, 2010 regarding his res judicata argument.
The court also declines to consider the defendant's argument regarding the plaintiffs' failure to cite to any of the removal grounds listed in § 45a-242, because the argument challenges the sufficiency of the complaint and therefore is better suited to a motion to strike. "A motion to strike . . . rather than a motion to dismiss . . . is the proper vehicle to attack the legal sufficiency of a complaint." Caruso v. Bridgeport, supra, 285 Conn. 629-30. "There is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action and therein lies the difference between the motion to dismiss and the motion to strike." (Internal quotation marks omitted.) Pecan v. Madigan, 97 Conn.App. 617, 621, 905 A.2d 710 (2006), cert. denied, 281 Conn. 919, 918 A.2d 271 (2007). If the complaint, the pleading that initiated the present probate court appeal, can be amended so that it more expressly states the cause of action under § 45a-242, it would be error to grant the motion to dismiss on the ground of insufficient pleading. Baskin's Appeal from Probate, 194 Conn. 635, 640-41, 484 A.2d 934 (1984).
Finally, the court will not consider the plaintiffs' argument regarding the relevance of the fees dispute to the issue of the defendant's fitness to serve as trustee, because the fees dispute is outside the scope of what the court may consider in the present action. "[T]he Superior Court may not consider events transpiring after the Probate Court hearing . . ." Gardner v. Balboni, supra, 218 Conn. 225; see also Marshall v. Marshall, 71 Conn.App. 565, 569, 803 A.2d 919, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002) ("In a probate court appeal, the Superior Court cannot consider events that occurred after the issuance of the order or decree appealed from"). The sale of the Brooklyn gas station happened on February 5, 2010, almost seven months after the Probate Court denied the plaintiffs' petition to remove the defendant as trustee on July 15, 2009. The court therefore may not consider the fees dispute in relation to the issue of the defendant's fitness to serve as trustee, because the dispute arose in response to an event that occurred after the issuance of the subject denial.
The court now reaches the issue of whether the sale of the Brooklyn gas station and Marlene Rosen's withdrawal from the New York litigation have mooted the plaintiffs' probate court appeal. Because the sale of the Brooklyn gas station is outside the scope of what the court may consider in the present action, the plaintiffs also cannot base their argument for the defendant's removal on how the defendant will distribute and invest the profits from the sale. The court nonetheless concludes that the plaintiffs' appeal is not moot, because there are still live issues of whether the defendant is fit to serve as trustee and therefore whether the Probate Court abused its discretion in denying the plaintiffs' petition for removal. Although several of the plaintiffs' allegations rely upon the January 10, 2003 court stipulation and the handling of the Brooklyn gas station, some do not.
The plaintiffs allege in paragraph six of the complaint: "There is a conflict of interest between Marc Rosen as a beneficiary and Marc Rosen as trustee of said trust." They also allege in paragraph seven: "Marc Rosen is estranged from his mother and his brother, and there is a complete lack of trust by them as to Marc's intentions." They further allege in paragraph twenty: "If the property were to be sold, the plaintiffs believe that Marc Rosen should not remain in control of the proceeds, considering that he was previously removed by the New Haven Probate Court as trustee on April 18, 2002 for failure to meet his fiduciary responsibilities." Judge Keyes addressed these issues in his July 15, 2009 memorandum: "There are issues of potential conflict, described here as `inherent,' and past conflict, which are cause for concern. Indeed, Mr. Rosen was removed as Trustee in April 2002, as correctly pointed out by counsel." These issues are distinct and separate from both the Brooklyn gas station and the New York litigation and therefore are not mooted by the sale of the gas station or Marlene Rosen's withdrawal from the litigation. The court may still provide practical relief to the plaintiffs by holding that the Probate Court abused its discretion in finding that there was no cause for the defendant's removal, despite these issues, and by replacing the defendant with Scott Kern, a New Haven attorney whom the plaintiffs specify in their complaint.
CONCLUSION
Accordingly, for the foregoing reasons, defendant's motion to dismiss is denied.