Opinion
No. CV 04001122
July 24, 2006
MEMORANDUM OF DECISION RE MOTION TO DISMISS FOR WANT OF JURISDICTION OVER, INTER ALIA, TERMINATION OF TRUST OR REMOVAL OF TRUSTEE
The plaintiff, Lindsay W. Smith, Sr., individually and as trustee of the Eleanor Fitzgerald Smith Connecticut Residence Trust (the trust), has brought this action against Pamela Smith, individually and as trustee of the trust, and against the contingent remaindermen of the trust, Lindsay W. Smith, Jr., Hamilton Clark Smith, Garrett F. Smith, Alicia Smith Piselli and Sean H. Smith, who are the grandchildren of the settlor. For purposes of simplicity, the court will refer to Lindsay Smith, Sr. as the plaintiff, and Pamela Smith will be referred to as the defendant.
On May 3, 2005, the defendant, Pamela Smith, filed a motion for order directing the plaintiff to name the trust as a party-defendant and to authorize Pamela Smith to defend this action (motion no. 107). On June 16, 2006, this court, Jones, J., ruled that inasmuch as Lindsay Smith, Sr. and Pamela Smith are co-trustees of the trust, as a matter of law, both individuals are parties to this action in their official capacity as trustees. "[A]s a genera] rule, the trustee is [the] proper person to sue or be sued on behalf of a trust." 76 Am.Jur.2d 636, Trusts § 606 (2005).
The trust was established on June 14, 1995, between Eleanor Fitzgerald Smith, settlor, now deceased, and the plaintiff and the defendant as trustees. The plaintiff and defendant are the son and daughter, respectively, of the settlor. At this time, the assets of the trust consist of a seasonal residence located in Groton Long Point, Connecticut, and a bank account of negligible value.
The plaintiff's amended complaint is in two counts: (1) termination of the trust/sale of the res, and (2) removal of the co-trustee. In count one of the amended complaint, filed on April 11, 2005, the plaintiff alleges in paragraph 14 that the trustees are "unable to agree to the continued management and operation of the trust, and it is now contrary to the best interests of the beneficiaries of the trust to continue the trust; further, [the plaintiff] is in need of both income and principal to maintain his support in reasonable comfort, maintenance, and health." Paragraph 15 alleges that the plaintiff has "provided services and funds to the trust for its maintenance and operation and seeks reasonable compensation for said services and financial outlays." Paragraph 16 states, "[The plaintiff] seeks an order from the court terminating the continuation of the trust; sale of the premises at Groton Long Point; and an equitable division of the income and principal of said trust."
In count two of the amended complaint the plaintiff alleges in paragraph 11 that "[the defendant] has failed to perform her duties and obligations as trustee throughout the tenure of the trust." In paragraph 12 of count two the plaintiff seeks the removal of the defendant as trustee, alleging that removal is necessary "to ensure the effective management of the trust, and is in the trust's best interests." In his claim for relief the plaintiff demands removal of the defendant as trustee, sale of the seasonal residence at Groton Long Point, an equitable division of the income and principal of the trust, and any and all other relief from the court that law and equity will allow.
On June 3, 2005, the defendant filed a cross complaint (motion no. 118) against the plaintiff seeking his removal as a trustee of the trust. The defendant alleges in paragraph 5 that the trust was "created to provide continued utilization of said premises" by the current beneficiaries thereof (i.e., the trustees and remaindermen). Paragraph 12 alleges that the plaintiff has "occupied said premises to the exclusion of the other beneficiaries of said trust without their consent and excluded said other beneficiaries from reasonable occupancy of said property and has exclusively used and occupied said premises in June and other months, during which times same were rentable." Paragraphs 13 and 14 allege that the "occupancy [of the seasonal residence] by [the plaintiff] . . . has . . . reasonably deprived [the trust] of rental income available for the months of June and other months each year during the trust's existence" and the plaintiff has "failed to account to the co-trustee for such use and occupancy and loss of rents during such period." The defendant further alleges in paragraph 18 that the plaintiff has "intentionally diminished the income of said trust." In her claim for relief the defendant seeks to remove the plaintiff as trustee and appoint herself as the sole surviving trustee of the trust. The defendant further seeks reimbursement from the trust for all reasonable costs and expenses, including court costs, attorneys fees, and accountant and investment advisor fees.
On January 6, 2006, the defendant remaindermen, Lindsay W. Smith, Jr., Hamilton Clark Smith, Garrett F. Smith, and Alicia Smith Piselli, filed a cross complaint (motion no. 129) against the plaintiff. The cross complaint, which is nearly identical to the defendant's cross complaint, alleges the same facts and seeks removal of the plaintiff as trustee and appointment of the defendant as sole trustee of the trust. The defendant remaindermen further seek an order of the court protecting their interests in and to the trust.
In response to the cross complaints, the plaintiff, on March 2, 2006, filed a motion to dismiss and accompanying memorandum of law (motions no. 133, 133.50) arguing that the two cross complaints filed against him should be dismissed on the grounds that: (1) the Probate Court has primary jurisdiction over actions to remove a trustee, and (2) the substance of both cross complaints is the removal of the plaintiff as trustee, therefore the complaints, in their entirety, should be dismissed.
The defendant has filed her memorandum of law in opposition (motions no. 145, 147) to the plaintiff's motion to dismiss. Thereafter, the defendant remaindermen, Lindsay W. Smith, Jr., Hamilton Clark Smith, Garrett F. Smith, and Alicia Smith Piselli, filed their memorandum of law in opposition (motion no. 151) to the motion to dismiss. In their memoranda in opposition, the defendants argue that the Superior Court has jurisdiction over the adjudication of this controversy because it has general jurisdiction concurrent with that of the Probate Court, whose jurisdiction is neither original nor exclusive. The motion to dismiss for lack of subject matter jurisdiction is presently before this court.
Standing for Deciding 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." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.26 152 (2002). "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." Baily v. Medical Examining Board for State Employee Disability Retirement, 75 Conn.App. 215, 219, 815 A.2d 281 (2003). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003).
The basis of the motion to dismiss is that the Superior Court has no jurisdiction to adjudicate the controversy before it because the Probate Court has primary, or exclusive, jurisdiction over actions to remove a trustee. Interestingly, as noted by the defendants in their respective memoranda of law in opposition to the motion to dismiss, the plaintiff initiated this action in the Superior Court seeking, inter alia, removal of the defendant trustee, thus invoking the jurisdiction of this court, and yet, he presently seeks to have this court dismiss the defendants' cross complaints against him seeking his removal as trustee.
"The superior court shall be the sole court of original jurisdiction for all causes of action, except such actions over which the courts of probate have original jurisdiction, as provided by statute." General Statutes § 51-164s. Generally, the Superior Court has concurrent jurisdiction with the Probate Court, except in certain clearly delineated areas. General Statutes § 45a-98(b) provides: "The jurisdiction of courts of probate to determine title or rights or to construe instruments or to apply the doctrine of cy pres or approximation pursuant to subsection (a) of this section is concurrent with the jurisdiction of the Superior court and does not affect the power of the Superior Court as a court of general jurisdiction." (Emphasis added.) This grant of jurisdiction is qualified by General Statutes § 45a-98a(a), which confers such jurisdiction on the Probate Court if "(1) the matter in dispute is not pending in another court of competent jurisdiction and (2) the Probate Court does not decline jurisdiction."
"The Superior Court cannot exercise a primary jurisdiction which by the statute is reposed in the Courts of Probate." First National Bank Trust Co. v. McCoy, 124 Conn. 111, 115, 198 A. 183 (1938); see also Hall v. Dichello Distributors, Inc., 6 Conn.App. 530, 534-35, 506 A.2d 1054 (1986). "The Supreme Court has indicated that [i]n contrast to courts of probate, [t]he Superior Court of this state as a court of law is a court of general jurisdiction. It has jurisdiction of all matters expressly committed to it and of all others cognizable by any law court of which exclusive jurisdiction is not given to some other court. The fact that no other court has exclusive jurisdiction in any matter is sufficient to give the Superior Court jurisdiction over that matter . . . In re Joshua S., 260 Conn. 182, 215, [ 796 A.2d 1141] (2002)." (Internal quotation marks omitted.) Fogg v. Gardella, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 000072030 (February 20, 2003, Nadeau, J.) ( 34 Conn. L. Rptr. 194).
"With respect to the jurisdiction of the Probate Court, there are three types of actions in which the Superior Court does not exercise original jurisdiction: those involving the custody of a child not the issue of the marriage involved in a divorce, settlement of an executor's or administrator's account, and the question of due execution of a will." (Internal quotation marks omitted.) Id. See also Hall v. Dichello Distributors, Inc., supra, 6 Conn.App. 535.
In accordance with the views expressed in Hall and Fogg, this court finds in the present case that the Superior Court may exercise jurisdiction to adjudicate the controversy before it because an action to remove a trustee does not fall within any of the three specific areas dedicated to the original jurisdiction of the Probate Court.
Accordingly, the plaintiff's motion to dismiss is denied.