Opinion
No. CV 03 0070710
October 23, 2003
MEMORANDUM OF DECISION MOTION TO DISMISS
Before this court is the defendant's motion to dismiss the appeal from probate. For the reasons set forth herein, the court grants the motion to dismiss.
I
On June 30, 2003, the appellant, Sandra Suplicki, filed an appeal from probate, alleging that she was aggrieved by a certain order and decree of the probate court concerning a gun that was part of an estate of which she is the executrix. On July 7, 2003, the appellee, the Honorable Stuart Case, Probate Judge for the District of Hampton, filed by counsel a motion to dismiss the appeal on the ground that the court lacks jurisdiction over the subject matter. As required by Practice Book § 10-31, the motion was accompanied by a supporting memorandum of law. The appellant has not filed a memorandum in opposition to the motion to dismiss.
II
"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). "A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter . . ." Kizis v. Morse Diesel International Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "The motion to dismiss admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346, 766 A.2d 400 (2001). Effective October 1, 1989, "Practice Book § [ 10-31 has] been amended so that a party who files an untimely memorandum is no longer deemed to consent to the granting of a motion made under [this] section." Southport Manor Convalescent Center, Inc. v. Foley, 216 Conn. 11, 13 n. 1, 578 A.2d 646 (1990).
The appellee moves to dismiss the appeal on the ground that the court lacks subject matter jurisdiction. In support of his motion, the appellee argues that the appellant has neither received permission to appeal from the probate court nor paid the statutorily required bond.
General Statutes § 45a-186 provides in relevant part 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 appeal therefrom to the Superior Court . . . 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 or a bond substantially in accordance with the bond provided for appeals to the Supreme Court . . ."
Pursuant to § 45a-186, therefore, the requirements for an appeal from probate are (1) that the appellant be aggrieved and (2) that the appellant give security or bond for the appeal. Because "it is the burden of 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"; St. George v. Gordon, 264 Conn. 538, 544-45, 825 A.2d 90 (2003) (internal quotation marks omitted); the appellant must allege that she has met these two requirements in order to survive a motion to dismiss. In the present case, the plaintiff alleges that she is aggrieved by a decision of the probate court. She fails, however, to allege that she has posted the required appeal bond.
There appears to be a split in the Superior Court as to whether an appellant's failure to post the appeal bond deprives the court of subject matter jurisdiction. "[S]ome irregularities make an appeal from probate void, as where the appeal is filed by a person who is not aggrieved . . . or where the appeal is taken to the wrong court . . . In Orcutt's Appeal [ from Probate, 61 Conn. 378, 24 A. 276 (1892)], the court itself noted that some irregularities are only `voidable' such as the `want of a bond on the probate appeal' . . . Matters that render an appeal void go to the very capacity of a court to hear the type of claim made and where the irregularity voids the appeal the court has no subject matter jurisdiction. Failure to give bond or recognizance . . . does not go to the power of the court to hear the case before it. Language in the older cases suggesting the posting of bond is a necessary condition of a proper statutory appeal from probate only hold that such an appeal would have been subject to a plea in abatement or a present motion to dismiss but the defect is not such as to deprive the court of jurisdiction if the party who would be entitled to press such a pleading waives his or her right to do so." (Citations omitted.) Rindos v. Estate of Rindos, Superior Court, judicial district of Milford, Docket No. CV 96 0563285 (March 26, 1997, Corradino, J.) ( 19 Conn. L. Rptr. 309, 310); but see In re Xavier, Superior Court, juvenile matters at Willimantic (April 15, 2002, Mack J.) (holding that failure to give security required by § 45a-186 deprives Superior Court of subject matter jurisdiction).
Whether the appellant's failure to post the appeal bond deprives the Superior Court of subject matter jurisdiction, thus rendering the appeal void ab initio, is of little consequence in the present case. Courts are in agreement that the failure to post the appeal bond at least renders the appeal voidable by the appellee's timely filing of a motion to dismiss. See Rindos v. Estate of Rindos, supra, 19 Conn. L. Rptr. 310. In the present case, the appellee has filed such a motion. Because the appellant has failed to allege that she posted the appeal bond, her appeal from probate must therefore be dismissed.
The court dismisses this appeal based on the requirements of § 45a-186, and therefore does not reach the appellee's alternative claim that the appellant has failed to seek permission to appeal from the probate court.
ORDER
For the foregoing reasons, the appellee's motion to dismiss the appeal from probate is granted. It is so ordered.
Foley, J.