Opinion
No. CV-08-4033288S
July 12, 2010
RULING ON MOTION TO DISMISS (#152)
Representing himself, Jerome Colton Sills, Jr. (Sills) initially commenced this action as an appeal from probate by way of complaint dated August 29, 2008 and served on September 3, 2008 on David M. Spinner (Spinner) and Brenda J. Gibbs. The appeal, citing to two decrees issued by the Court of Probate for the District of Woodbridge on July 9, 2003 and January 14, 2004, broadly alleged that Sills, a beneficiary, was aggrieved due to the conduct of Spinner, the court appointed administrator of the estate of Joseph C. Sills, Sr., in managing and disposing of the estate's property. The two decrees were appended to the complaint.
On October 31, 2008, ten days after the return date, Sills filed a document captioned "Complaint," in which Sills alleged, among many things, that Spinner caused property damage to the estate and appropriated funds from the estate's bank account without authority. Sills also reiterated or amplified the original appeal's claims regarding Spinner's conduct in managing and disposing of the estate's property. Sills did not allege, however, that he was aggrieved by any other orders, decrees or denials by the probate court in addition to the decrees from 2003 and 2004 cited in the original complaint.
On January 16, 2009, Spinner, who at the time was representing his own interests, moved to strike the October 31, 2008 in its entirety solely on the ground that it was insufficient because it asserted "claimed violations of the Rules of Professional Responsibility (sic) and alleged violations of criminal statutes, neither of which are grounds for recovery in a civil action." Addressing this claim only, see Practice Book § 10-41, this court determined that the probate appeal survived the motion to strike because there were "minimally sufficient allegations" of fact without regard to the claimed violations of rules and statutes. See #133.
Thereafter, on April 30, 2009, Sills filed a jury claim (#135) and a certificate of closed pleadings (#136). On the latter, he claimed the case as privileged by checking the box in section A of the form that reads "appeal from probate or from the doings of commissioners appointed by courts of probate." Following the filing of Spinner's Answer and Special Defenses (#148), on June 19, 2009 Sills filed a second certificate of closed pleadings in which he again claimed the case as privileged by checking the box that reads "appeal from probate or from the doings of commissioners appointed by courts of probate" as well as the box that reads "action by or against any person sixty-five years of age or older who reaches such age during the pendency of the action." A third and identical certificate of closed pleadings was filed on July 8, 2009.
In all three certificates, Sills checked three boxes to describe the nature of the proceeding: "Hearing in Damages to the Court," "Hearing in Damages to the Jury" and "Administrative Appeals."
On April 28, 2010, Spinner moved, through counsel, to dismiss the complaint on the ground that "the action does not comply with the statutory requirements set forth in C.G.S. § 45a-186 and consequently the Superior Court lacks subject matter jurisdiction." (#152). Alternatively, if the court did not dismiss the complaint, Spinner moved to have the case stricken from the jury docket on the ground that "the plaintiff is not entitled to a jury trial on his claims." The court concludes, for the reasons set forth below, that it lacks subject matter over this case and it must be dismissed. Therefore, it is not necessary to address the alternative ground.
Practice Book § 10-33 provides that: "Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action." The Superior Court derives its jurisdiction to review claims arising from the probate court solely by statute. See Satti v. Rago, 186 Conn. 360, 364-65, 441 A.2d 615 (1982) (and cases cited therein); Porto v. Sullivan, 119 Conn.App. 360, 365, 987 A.2d 1092 (2010). Probate appeals are not "ordinary civil actions." Silverstein v. Laschever, 113 Conn.App. 404, 409, 970 A.2d 123 (2009). "In acting on an appeal from probate, the Superior Court does not exercise the jurisdictional powers vested in it by the constitution but, instead, exercises a special and limited jurisdiction conferred on it by the statutes." Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565-66, 192 A.2d 44 (1963). "Our legislation has always favored the speedy settlement of estates, and to that end has carefully limited the time within which such appeals [from probate] must be taken." Delehanty v. Pitkin, 76 Conn. 412, 419, 56 A. 881 (1904). "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, 546 A.2d 250 (1988).
Prior to October 1, 2007, General Statutes § 45a-186 provided that appeals from probate were commenced by motion to the probate court which was then required to issue an order regarding the notice to be provided to interested parties. Thereafter, an appeal could be filed in the Superior Court but General Statutes § 45a-187(a) required that the appeal be taken "within thirty days," unless the appealing party lacked actual notice. Corneroli v. D'Amico, 116 Conn.App. 59, 64, 975 A.2d 107, cert. denied, 293 Conn. 928, 980 A.2d 909 (2009). In 2007, the General Assembly amended General Statutes § 45a-186 to provide that all appeals from probate be commenced by directly filing a complaint with the Superior Court. P.A. 07-116, § 2. The applicable portion of the statute requires that an appeal be brought "not later than thirty days after mailing of an order, denial or decree . . . in a court of probate." General Statutes § 45a-186(a). The Appellate Court has determined that "[t]he meaning of § 45a-186(a), as amended by P.A. 07-116, . . . is plain and unambiguous." Corneroli v. D'Amico, supra, 116 Conn.App. 65. "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." Id. at 67.
The thirty-day requirement for appeals of this type has been longstanding. See former General Statutes § 45-289, which was transferred to § 45a-187 in 1991.
Spinner has properly moved to dismiss this probate appeal and the court is required to do so under the controlling law. The complaint refers to and attaches two decrees of the probate court from 2003 and 2004. Apparently, Sills did not appeal from these decrees in either 2003 or 2004 pursuant to the former requirements of General Statutes § 45a-186 and General Statutes § 45a-187. In 2003 and 2004, the time limit to bring an appeal from probate was governed by General Statutes § 45a-187(a) which provided a thirty-day limit if the appealing party was present at the hearing or had notice of the decree and a twelve-month time limit if the appealing party was not present or lacked notice. See Porto v. Sullivan, supra, 119 Conn. 366. Under either time limitation or under the thirty-day time limitation set forth in the present version of § 45a-186(a), this appeal is untimely on its face. Sills complains he was aggrieved by the 2003 and 2004 decrees but did not bring this appeal until September 3, 2008, well past the time limitation for bringing a valid probate appeal. The additional claims Sills has made against Spinner for breach of his fiduciary duties in the administration of the estate do not provide an independent ground for jurisdiction in the absence of a valid probate appeal. Because the appeal was untimely brought, the court must dismiss the complaint.
However, Sills has recently filed an appeal from the Probate Court's approval of the final administration of account with modifications by decree on July 22, 2009. Sills v. Spinner, Superior Court, Judicial District of New Haven, docket no. CV-09-5031843. In the new appeal, of which the court takes judicial notice, Sills has alleged that Spinner breached his fiduciary duties in administering the estate by, among other things, failing to maintain the estate's only asset, a house, in proper condition, by allowing the estate to be sued and by filing faulty, inaccurate and erroneous accountings. (Complaint ¶¶ 9(a)(b)(c)(d)(e) and (f). Thus, Sills is not foreclosed from the opportunity to litigate the general substance of the claims he has made here against Spinner by virtue of the dismissal of this action. Cf. Vredenburgh v. Norwalk Probate Court, 118 Conn.App. 436, 441, 984 A.2d 773 (2009).
Accordingly, for the foregoing reasons, this action is dismissed.