Opinion
No. 115029427
June 15, 2011
MEMORANDUM OF DECISION
On January 28, 2011, the plaintiff, Jay Tyler, proceeding pro se, filed a seven-count complaint against the defendants Thomas Tyler ("Thomas"), Russell Tyler ("Russell), John Tyler, Jr. ("John") and Richard Tatoian. Thomas, Russell, John and the plaintiff are the children of Ruth Tyler ("Ruth"), who died testate on April 2, 2010. Tatoian is trustee of the Ruth B. Tyler Irrevocable Trust, ("trust").
Bruce Tyler is also a named defendant but no causes of action are alleged against him. Accordingly, unless otherwise stated, "the defendants" refers to Thomas, Russell, John and Tatoian.
In his complaint the plaintiff alleges the following facts. On March 27, 1984, Ruth executed a will ("1984 will"). On October 24, 1999, Ruth executed a new will ("1999 will"). On October 8, 2004, Ruth established her trust. "At the time of the execution of the 1999 will and the 2004 trust the financial circumstances of the plaintiff were very unfavorable, a fact known to all defendants and to [Ruth]." The 1999 will and the trust provide for equitable distribution of her estate among her children, but the 1999 will stipulates that the plaintiff's inheritance should be reduced by his debt to Ruth. This provision "in effect disinherits the plaintiff."
Although the plaintiff only alleges that the 1999 will contains a debt consideration provision, the trust also include such a provision. See Exhibit C, Article 4, to the complaint.
The plaintiff further alleges the following. When Ruth executed her 1999 will, she was a widow, 83 years of age, who lived alone and did not drive. Her physical and mental capacity were in decline. She was vulnerable. When Ruth executed the trust, her mental and physical condition had worsened and she had moved to an assisted living facility in Suffield, CT, where she required daily medical attention. Accordingly, her vulnerability had increased. Thomas, who also lived in Suffield, was "disposed to exert undue influence [on Ruth] because that was his nature." Thomas "enjoys a reputation as a person who is `morally bankrupt,' despicable,' a `monster', and a person who `enjoys terrorizing people.'" Ruth's testamentary provisions that account for the plaintiff's debt are the result of Thomas' undue influence. Thomas, together with John, Russell and Tatoian, conspired to keep the existence of the 1999 will and the trust a secret. The plaintiff became aware of the provisions of the 1999 will and the trust in August 2010, approximately four months after Ruth's passing.
In the first count of the complaint, the plaintiff asserts that the 1999 will and the trust should be set aside because the provisions therein "[are] the result of the undue influence [Thomas] exercised over the will of the Decedent." In the second count, he asserts a claim for "wrongful deprivation of property" against Thomas, Russell, John and Tatoian on the ground that their acts and omissions deprived the plaintiff of his share of Ruth's estate. In the third count, he asserts a negligence claim against Tatoian on the ground that he failed to provide annual accountings of the trust which "kept [the plaintiff] from discovering the undue influence" exercised over Ruth. In the fourth count, the plaintiff asserts a claim for wrongful appropriation of Ruth's assets during her lifetime against Thomas, Russell and John on the ground that they "incurred excessive settlement charges" in the sale of farm property owned by Ruth, thereby diminishing the plaintiff's inheritance. In the fifth count, he asserts a claim for wrongful appropriation of Ruth's assets during her lifetime against Thomas, Russell and John on the ground that they "arranged" "excessive settlement charges" related to the sale of real property that was owned by a partnership. In the sixth count, he asserts a claim for wrongful appropriation of Ruth's assets during her lifetime against Thomas, Russell and John on the ground that they collected Ruth's personal property for safekeeping during her lifetime, but kept it after she passed without authorization from or accounting to the Probate Court. In the seventh count, the plaintiff asserts a claim for making "false representations to the Probate Court to deprive the plaintiff of his share [of Ruth's estate]" against Thomas and John on the ground that they collected Ruth's personal property for safekeeping during her lifetime, but that after her death, John falsely claimed to the Probate Court that she did not own any property to be probated. The plaintiff requests the following relief: (1) that the 1999 will and the trust be set aside in favor of the 1984 will; (2) money damages; (3) CUTPA damages; (4) "other relief"; and (5) specific performance of accountings, appointments and asset transfers.
The complaint alleges that the real property was owned by a partnership and that the partnership, in turn, was owned in equal parts by John and by Ruth's deceased husband, John Tyler, Sr., during his lifetime.
On February 18, 2011, the defendants filed a motion to dismiss the entire action. "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." Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). "In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006). "Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . ." (Internal quotation marks omitted.) Id.
The defendants argue that this court lacks subject matter jurisdiction over this matter because it should be adjudicated by the Probate Court. The plaintiff argues that the motion to dismiss should be denied on three grounds: (1) the Superior Court has subject matter jurisdiction over this matter pursuant to General Statutes § 45a-98a because this action was commenced before proceedings began in the Probate Court; (2) equity requires that the motion be dismissed; and (3) the plaintiff would be deprived of his right to a jury trial in a Probate Court.
The plaintiff's arguments mirror those made by Bruce Tyler.
"Article fifth, § 1 of the Connecticut constitution proclaims that [t]he powers and jurisdiction of the courts shall be defined by law, and General Statutes § 51-164s provides that [t]he 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 . . . [T]he general rule of jurisdiction . . . is that nothing shall be intended to be out of the jurisdiction of a Superior Court but that which specially appears to be so; and . . . nothing shall be intended to be within the jurisdiction of an inferior court but that which is expressly so alleged." (Citation omitted; internal quotation marks omitted.) Raftopol v. Ramey, 299 Conn. 681, 695, 10 A.3d 942 (2011). "[W]e will not oust the Superior Court of jurisdiction by implication and we will not enlarge the jurisdiction of the Probate Court beyond that which is expressly committed to it by statute." Id., 697. "[T]he Superior Court . . . 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 the CT Page 13733 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." (Emphasis added.) In re Joshua S., 260 Conn. 182, 215, 796 A.2d 1141 (2002).
"[T]here 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.) In re Joshua S., supra, 260 Conn. 216. "[N]either [the Supreme Court] nor the trial court has original subject matter jurisdiction to admit a will to probate or to entertain claims by parties contesting its admission. Rather, the Probate Court, by virtue of its long-standing statutory authority, has exclusive subject matter jurisdiction over matters involving the validity of wills and the settlement of estates." Dunham v. Dunham, 204 Conn. 303, 328, 528 A.2d 1123 (1987), overruled in part on other grounds, Santopietro v. New Haven, 239 Conn. 207, 213 n. 8, 682 A.2d 106 (1996). "[S]o far as the determination of . . . controversies is necessary to the settlement of the estate, they should be determined in the Court of Probate . . ." (Emphasis added.) Appeal of Slattery, 90 Conn. 48, 50, 96 A. 178 (1915).
The jurisdiction and powers of Probate Courts are set forth in Title 45a of the General Statutes. General Statutes § 45a-98 provides, in relevant part: "(a) Courts of probate in their respective districts shall have the power to . . . (2) admit wills to probate of persons who have died domiciled in their districts or of nondomiciliaries whose wills may be proved in their districts as provided in section 45a-287; (3) except as provided in section 45a-98a or as limited by an applicable statute of limitations, determine title or rights of possession and use in and to any real, tangible or intangible property that constitutes, or may constitute, all or part of any trust, any decedent's estate, or any estate under control of a guardian or conservator, which trust or estate is otherwise subject to the jurisdiction of the Probate Court, including the rights and obligations of any beneficiary of the trust or estate and including the rights and obligations of any joint tenant with respect to survivorship property; (4) except as provided in section 45a-98a, construe the meaning and effect of any will or trust agreement if a construction is required in connection with the administration or distribution of a trust or estate otherwise subject to the jurisdiction of the Probate Court, or, with respect to an inter vivos trust, if that trust is or could be subject to jurisdiction of the court for an accounting pursuant to section 45a-175, provided such an accounting need not be required . . . (6) to the extent provided for in section 45a-175, call executors, administrators, trustees, guardians, conservators, persons appointed to sell the land of minors, and attorneys-in-fact acting under powers of attorney created in accordance with section 45a-562, to account concerning the estates entrusted to their charge; and (7) make any lawful orders or decrees to carry into effect the power and jurisdiction conferred upon them by the laws of this state.
"(b) 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."
Section 45a-98a provides, in relevant part: "(a) The Probate Court shall have jurisdiction under subdivision (3), (4) or (5) of subsection (a) of section 45a-98 only if (1) the matter in dispute is not pending in another court of competent jurisdiction and (2) the Probate Court does not decline jurisdiction."
Two of the plaintiff's claims fall squarely within the specific areas consigned to the Probate Court's original jurisdiction. In count seven, the plaintiff claims that John falsely represented to the Probate Court that Ruth died without "any property to be probated." Ruth nominated John to be executor of her estate in Article VII of her 1999 Will. See Complaint, Exhibit A, Article VII. Presumably John is the duly appointed executor of Ruth's estate; Farmers' Loan Trust Co. v. Smith, 74 Conn. 625, 626-27, 51 A. 609 (1902) ("A testator is entitled to select the person who shall exercise his will, and unless the selection is made from a class of persons which by common law or by some statutory provision is excluded from such appointment, the court administering probate jurisdiction cannot reject the person selected"); and the allegedly false representation implicates his accounting. See American Surety Co. of New York v. McMullen, 129 Conn. 575, 582-83, 30 A.2d 564 (1943) ("The estate of a deceased person consists of property the title to or an interest in which is derived from him, which it is the duty of the executor or administrator to inventory and for which he must account to title Probate Court"). The Probate Court has exclusive subject matter jurisdiction over an executor or administrator's account and the settlement of an estate. In re Joshua S., supra, 260 Conn. 216; Dunham v. Dunham, supra, 204 Conn. 328; Appeal of Slattery, supra, 90 Conn. 50. For this reason, the court grants the motion to dismiss as to count seven.
The Connecticut Probate Practice Book (4th Ed. 2000) Pt. I, Ch. I, Sec. II.A.8, p. 1-11 requires submission of a final accounting before an estate may be closed, providing, in relevant cart: "When all of the decedent's property has been collected, and all debts, expenses and taxes have been paid, the fiduciary must file a final account." Id.
In count one, the plaintiff makes a two-part claim that Ruth's 1999 will and the trust are the result of undue influence that was exerted over her and that they should be set aside in favor of the 1984 will. To the extent that count one questions the due execution of her 1999 will and whether it should be admitted to probate, the court grants the motion to dismiss because Probate Courts have exclusive subject matter jurisdiction over the due execution and validity of wills. In re Joshua S., supra, 260 Conn. 216; Dunham v. Dunham, supra, 204 Conn. 328. However, insofar as count one claims the trust was the result of undue influence and should be set aside, the court denies the motion to dismiss because Probate Courts do not have exclusive subject matter jurisdiction over the due execution and validity of inter vivos trusts. Therefore, the Superior Court is not deprived of jurisdiction. In re Joshua S., supra, 260 Conn. 214-16. A motion to dismiss may be granted as to portion of count. See Orsini v. Department of Transportation, Superior Court, judicial district of Tolland, Docket No. CV 07 4007290 (February 15, 2008, Sferrazza, J.) ( 45 Conn. L. Rptr. 30); Cross v. Nearine, Superior Court, judicial district of Hartford, Docket No. CV 94 0538675 (February 17, 1995, Wagner, J.).
In counts four, five and six, the plaintiff claims that Ruth's assets, including real and personal property, were wrongfully appropriated during her lifetime. "It is basic in our probate law that the legal title to the personal property of a decedent, including choses in action, vests in his administrator or executor." Lynch v. Skelly, 138 Conn. 376, 379, 85 A.2d 251 (1951). "Although at common law the death of a sole plaintiff or defendant abated an action . . . by virtue of [General Statutes] § 52-599, Connecticut's right of survival statute, a cause of action can survive if a representative of the decedent's estate is substituted for the decedent. It is a well established principle, however, that [d]uring the interval . . . between the death and the revival of the action by the appearance of the executor or administrator, the cause has no vitality. The surviving party and the court alike are powerless to proceed with it." (Citation omitted; internal quotation marks omitted.) Burton v. Browd, 258 Conn. 566, 570-71, 783 A.2d 457 (2001).
General Statutes § 52-599 provides, in relevant part: "(a) A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person. (b) A civil action or proceeding shall not abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of the decedent. If a party plaintiff dies, his executor or administrator may enter within six months of the plaintiff's death or at any time prior to the action commencing trial and prosecute the action in the same manner as his testator or intestate might have done if he had lived. If a party defendant dies, the plaintiff, within one year after receiving written notification of the defendant's death, may apply to the court in which the action is pending for an order to substitute the decedent's executor or administrator in the place of the decedent, and, upon due service and return of the order, the action may proceed."
Accordingly, the only party with standing to pursue an action on Ruth's behalf is the executor or administrator of her estate. Because the plaintiff is not an executor or administrator of the estate, he does not have standing to assert these claims. For this reason, the court grants the motion to dismiss as to counts four, five and six for lack of subject matter jurisdiction. Burton v. Browd, supra, 258 Conn. 570-71; Wilcox v. Webster Ins., Inc., supra, 294 Conn. 213 ("issue of standing implicates subject matter jurisdiction and is therefore basis for granting motion to dismiss").
In count three, the plaintiff claims that Tatoian negligently failed to provide him with accountings of the trust and this omission prevented the plaintiff from discovering the undue influence exercised over Ruth. In support of their motion, the defendants ask the court to take judicial notice that, on March 30, 2011, the Windsor Probate Court accepted jurisdiction of the Trust and approved an accounting for the period of October 8, 2004 through December 31, 2010 pursuant to General Statutes § 45a-175 which provides, in relevant part: "(a) Courts of probate . . . shall have jurisdiction of accounts of the actions of trustees of inter vivos trusts . . . (d) The action to submit an accounting to the court, whether by an inter vivos trustee . . . or whether pursuant to petition of another party, shall not subject the trust . . . to the continuing jurisdiction of the Probate Court." Nevertheless, the Probate Court may only accept jurisdiction of an inter vivos trust pursuant to § 45a-175 if the matter in dispute is not already "pending in another court of competent jurisdiction . . ." See General Statutes § 45a-98a(a). Pursuant to General Statutes §§ 45a-98, 51-164s, the Superior Court is a court of competent jurisdiction, and this action has been pending in the court since January 28, 2011, when it was returned to court. See Bank of Boston v. Schlesinger, 220 Conn. 152, 161-62, 595 A.2d 872 (1991) ("A suit is pending from the time that it is returned to the court because only then does it pass beyond the physical control of the litigants"). Because the Probate Court does not have exclusive subject matter jurisdiction over inter vivos trusts, and because this matter was already pending in this court when the trust was submitted to the Probate Court, the motion to dismiss as to count three is denied.
General Statutes § 45a-98a also sets forth a procedure by which disputes may be removed from the Probate Court to the Superior Court as follows: "[A]ny interested person may file an affidavit that such person is entitled and intends under section 52-215 to claim a trial of the matter by jury. In that case, the Probate Court shall allow the person filing the affidavit a period of sixty days within which to bring an appropriate civil action in the Superior Court to resolve the matter in dispute. If such an action is brought in the Superior Court, the matter, after determination by the Superior Court, shall be returned to the Probate Court for completion of the Probate Court proceedings."
Finally, in count two, the plaintiff incorporates the allegations of count one and claims that he has been wrongfully deprived of his share of Ruth's estate as a result of the "acts and omissions" of others. There is nothing in this claim that falls within the exclusive subject matter jurisdiction of the Probate Court and the Superior Court cannot be deprived of jurisdiction by implication. In re Joshua S., supra, 260 Conn. 216; Raftopol v. Ramey, supra, 299 Conn. 697. Accordingly, the court denies the motion to dismiss as to count two.
To recap, the court grants in part and denies in part the defendant's motion to dismiss count one. The court grants the motion as to counts four, five, six and seven. The court denies the motion as to counts two and three.