Opinion
UWYCV156029355S
03-21-2017
Laurie A. Wright, Executrix of the Estate of Anne E. Wright v. Probate for the District of Region #22 Southbury
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT #110
Rupal Shah, J.
I
INTRODUCTION
The plaintiff, Laurie Wright, as executrix of her mother, Anne Wright's, estate (decedent's estate), moves for summary judgment on her appeal from the Probate Court on the ground that the intervening defendant, Antoinette Violi (defendant), a creditor of her mother's estate, was time-barred from having her claim heard by the Probate Court. The defendant objects to the plaintiff's motion for summary judgment and argues that the summary judgment is procedurally inappropriate in probate appeals, and if the court holds that such motions are procedurally appropriate, that there are material issues of fact that preclude summary judgment. The court heard the matter at short calendar on December 19, 2016. After consideration, the court holds that summary judgment is appropriate because there are no genuine issues of material fact, and thus, the court grants the plaintiff's motion for summary judgment.
II
BACKGROUND
This appeal, filed on November 9, 2015, arises from a decree, dated October 8, 2015, and postmarked October 9, 2015, from the Region #22 Probate Court (Southbury Probate Court), granting in part, the defendant's motion for order and surcharge, dated April 29, 2015, that the plaintiff pay $12, 005.20 from the decedent's estate, to the defendant for services as the decedent's guardian ad litem.
The following relevant facts are alleged in the probate appeal, and supported by the affidavits filed with the plaintiff's motion for summary judgment and the defendant's objection:
1. On May 13, 2014, the Stamford Probate Court issued a decree approving payment for services rendered by the defendant as the decedent's guardian ad litem in the amount of $12, 005.20.
2. After the decedent died on May 19, 2014 in Southbury, the defendant filed a claim for the approved payment of legal fees with the decedent's estate on July 17, 2014.
3. On July 28, 2014, the decedent's will, dated February 26, 2008, was admitted to the Southbury Probate Court.
4. On October 15, 2014, Kevin Rooney, the plaintiff's current attorney, e-mailed the defendant and informed her that the plaintiff did not believe that the defendant was entitled to legal fees from the decedent's estate. The plaintiff also initiated a complaint against the defendant with the Statewide Grievance Committee on January 22, 2015.
5. On January 19, 2015, the plaintiff executed a return of claims and list of notified creditors (return of claims) and filed it with the Southbury Probate Court on February 10, 2015. The defendant was not included in the certification of mailing to notified parties; however, the defendant received a copy of the return of claims on February 8, 2015 from Fred Baker. The return of claims stated that the " amount allowed" relating to the defendant's $12, 005.20 probate claim was " $0.00."
6. On February 19, 2015, the defendant mailed a letter to the plaintiff, using certified mail, and demanded payment on her claim. In the defendant's letter to the plaintiff, she stated, " your client is hereby notified that she is to timely act upon my claim pursuant to Connecticut statute."
7. On April 29, 2015, the defendant moved for order and surcharge against the decedent's estate at the Southbury Probate Court for the amount previously awarded by the Stamford Probate Court, $12, 005.20.
8. On October 8, 2015, the Southbury Probate Court entered a decree, which directed that the plaintiff pay the defendant the amount previously established by the Stamford Probate Court. The Probate Court rejected the plaintiff's argument that the defendant failed to seek probate review of the rejection of her claim within the timeframe provided by statute because the plaintiff failed to provide the defendant with notice of rejection of her claim.
Baker was the plaintiff's attorney during the Southbury Probate Court proceeding. In his affidavit, Baker stated that he mailed a copy of the return of claims to the defendant, using United States mail, on February 5, 2015. The defendant concedes that she received the copy on February 8, 2015.
The plaintiff now seeks summary judgment on her appeal of the Southbury Probate Court's decree on the ground that the Probate Court did not have authority to hear the defendant's April 29, 2015 motion for order and surcharge request, as it was time-barred by General Statues § 45a-363(b).
On February 10, 2016, the plaintiff filed a memorandum of law in support of her motion for summary judgment and the following exhibits: (1) a letter from the defendant to Baker, dated July 17, 2014; (2) an e-mail from Rooney to the defendant, dated October 15, 2014; (3) the grievance complaint against the defendant, dated January 22, 2015; (4) the Southbury Probate Court return of claims, dated January 19, 2015; (5) the signed and sworn affidavit of Baker; (6) a certified letter from the defendant to Baker, dated February 19, 2015; (7) the defendant's motion for order and surcharge to the Southbury Probate Court, dated April 29, 2015; and (8) the Southbury Probate Court decree, dated October 8, 2015. The defendant filed a memorandum of law in opposition and the following exhibits: (1) the signed and sworn affidavit of the defendant; (2) the Stamford Probate Court's decree, dated May 13, 2014; (3) a letter from Baker to attorney Mark Dost, dated December 12, 2014; (4) the plaintiff's brief regarding the defendant's application on her rejected claim, dated June 26, 2015; and (5) a letter from the grievance panel to the defendant, dated June 30, 2015.
The plaintiff's appeal alleges that the Probate Court incorrectly determined that the plaintiff failed to provide proper notice to the defendant, and thus, incorrectly allowed the defendant review of her claim's rejection beyond the thirty-day appeal period imposed by General Statutes § 45a-363(b).
III
LEGAL STANDARD
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). " The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).
Since there is currently no appellate authority regarding whether a motion for summary judgment is procedurally appropriate in a probate appeal and there is a split of authority among the lower courts, this court adopts the reasoning of the line of Superior Court cases that hold that summary judgment is an appropriate procedural mechanism in probate appeals, and thus, will apply the same procedural principles used in civil actions. See Ackerman v. Sobol, Superior Court, judicial district of Hartford, Docket No. CV-07-4027616-S, (November 19, 2007, Elgo, J.); Daddona v. Probate Appeal, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-05-4004788-S, (February 27, 2007, Nadeau, J.); Infante v. Trumbull Probate Appeal, Superior Court, judicial district of Fairfield, Docket No. CV-03-0405936-S, (July 20, 2005, Dewey, J); Martin v. Probate Appeal, Superior Court, judicial district of Waterbury, Docket No. CV-03-0181530-S (November 29, 2004, Gallagher, J.) [38 Conn.L.Rptr. 328, ].
IV
DISCUSSION
The plaintiff seeks summary judgment on two alternative grounds. First, the plaintiff argues that the defendant's Probate Court action was time-barred under General Statutes § 45a-363(b) because the plaintiff provided proper notice of her rejection of the defendant's probate claim under General Statues § 45a-360(a) when the plaintiff's attorney e-mailed the defendant on October 15, 2014, or when the plaintiff's attorney mailed a letter and the return of claims, through United States mail, to the defendant on February 5, 2015. Second, the plaintiff argues that the defendant's Probate Court action was time-barred under § 45a-360(c) because the defendant failed to make application to the Probate Court within thirty days of the rejection of the defendant's claim.
First, the plaintiff argues that the defendant's motion for order and surcharge to the Probate Court is time-barred by § 45a-363(b) because the plaintiff provided proper notice under § 45a-360(a) on October 15, 2014, or February 5, 2015. Section 45a-360(a) provides: " The fiduciary shall . . . [g]ive notice to a person presenting a claim of the rejection of all or any part of his claim . . ." Section 45a-363(b) provides in relevant part: " Unless a person whose claim has been rejected . . . files a timely application pursuant to section 45a-364, he shall be barred from asserting or recovering on such claim from the fiduciary, the estate of the decedent or any creditor or beneficiary of the estate, except for such part as has not been rejected." General Statutes § 45a-364 provides in relevant part: " Whenever a claim has been rejected, in whole or in part, as provided in [General Statutes] 45a-360, the person whose claim has been rejected may, within thirty days from and including the date of such rejection, make application to the Probate Court to hear and decide such claim . . . The court may, in its discretion, grant the application, hear and decide such claim if the application so requests." The court agrees with the defendant's argument that neither one of these forms of notice properly constitute the type of notice required for purposes of § 45a-360.
In the present case, neither the plaintiff's attorney's e-mail, dated October 15, 2014, nor the plaintiff's attorney's letter with the return of claims, delivered by United States mail, dated February 5, 2015, to the defendant satisfied the notice requirement of § 45a-360(a). General Statutes § 45a-353(k) provides the relevant definition of " notice" for § 45a-360(a) and provides that " notice" is " a written instrument containing the required information sent to the person to whom the notice is to be given by certified or registered mail and the date on which such notice shall be deemed given shall be the date of mailing . . ." Notice under § 45a-360(a) is therefore not sufficient unless and until notice is given by certified or registered mail. See Hatt v. Burlington Coat Factory, 263 Conn. 279, 295, 819 A.2d 260 (2003) (strict compliance required when statute providing time sensitive right to appeal contains notice and service prescriptions); Chairman, Criminal Justice Commission v. Freedom of Information Commission, 217 Conn. 193, 200, 585 A.2d 96 (1991). The plaintiff, thus, failed to give such notice of rejection of claim through certified or registered mail as required by statute.
The court does not reach the issue of whether the return of claims, with a notation of " $0.00" under the " AMOUNT ALLOWED, " was sufficient notice of rejection of the defendant's claim under § 45a-360(a) because the plaintiff failed to mail such notice by way of certified or registered mail as prescribed by § 45a-360(a).
Second, the plaintiff argues that the defendant's Probate Court claim was time-barred under § 45a-360(c) because the defendant failed to make application to the Probate Court within thirty days of the rejection of the defendant's claim. The court holds that the defendant satisfied § 45a-360(c), by her letter, sent by certified mail, dated February 19, 2015, to the plaintiff, because the defendant gave the plaintiff notice to act upon her claim as provided by § 45a-360(a). Section 45a-360(c) provides in relevant part: " If the fiduciary fails to reject, allow or pay the claim within ninety days from the date that it was presented to the fiduciary . . . the claimant may give notice to the fiduciary to act upon the claim as provided by subsection (a) of this section. If the fiduciary fails to reject, allow or pay the claim within thirty days from the date of such notice, the claim shall be deemed to have been rejected on the expiration of such thirty-day period." In her February 19, 2015 letter, the defendant gave notice to the plaintiff to act upon her claim when the defendant stated, " your client is hereby notified that she is to timely act upon my claim pursuant to Connecticut statute." It was this notice that was consequential with respect to the defendant's claim to the estate.
The defendant argues, however, that the plaintiff seeks to introduce documentary evidence, specifically, the defendant's letter, dated February 19, 2015, which the plaintiff did not previously present to the Southbury Probate Court. Although the defendant vehemently disagrees with this court considering documentary evidence that was not before the Probate Court, the defendant does not dispute that she sent the correspondence currently at issue. " The function of the Superior Court in appeals from a Probate Court, [however, ] is to take jurisdiction of the order or decree appealed from and try that issue de novo." State v. Gordon, 45 Conn.App. 490, 494, 696 A.2d 1034, cert. granted on other grounds, 243 Conn. 911, 701 A.2d 336 (1997). The Superior Court may consider " all evidence presented on the appeal which would have been admissible in the Probate Court . . ." Id. Probate Court Rules § 62.1 provide: " The rules of evidence apply in all hearings in which facts are in dispute." The trial court has discretion in determining whether to consider documentary evidence submitted by a party of or in opposition to a motion for summary judgment. See Bruno v. Whipple, 138 Conn.App. 496, 506, 54 A.3d 184 (2012), cert. denied, 321 Conn. 901, 138 A.3d 280 (2016). The Superior Court, therefore, has the discretion to consider the plaintiff's evidence, so long as such evidence would have been admissible in the Probate Court. This court concludes that the plaintiff's evidence, specifically the defendant's letter, dated February 19, 2015, is appropriate given its existence is not in dispute.
As a result, the court finds that the claim was deemed rejected on March 21, 2015, because the plaintiff failed to reject, allow, or pay the defendant's claim before the expiration of the thirty-day period. See § 45a-360(c). The thirty-day period began on the date of the defendant's letter of February 19, 2015 and extended to March 21, 2015. Under § 45a-363(b), therefore, the defendant was required to make application, under § 45a-364, to the Probate Court to hear and decide the claim within thirty days of such rejection, which would have been April 20, 2015. The defendant made application to the Southbury Probate Court on April 29, 2015, nine days after the expiration of the thirty-day period.
Although the defendant argues that General Statutes § 45a-364(a) gives the Probate Court discretion to still consider the defendant's claim, the defendant fails to cite any case law for this proposition. The Superior Court has interpreted § 45a-364(a) and found that the language prescribing the number of days by which a claim must be filed in either Superior Court or the Probate Court is mandatory. See Daddona v. Probate Appeal, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-05-4004788-S, (February 27, 2007, Nadeau, J.); Bussiere v. Parker, Superior Court, judicial district of Middlesex, Docket No. CV-13-6008879, (August 20, 2014, Aurigemma, J.) [58 Conn.L.Rptr. 821, ]; Wheat v. Stamford Hospital, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-10-6005818-S, (October 19, 2011, Jennings, J.T.R.) [52 Conn.L.Rptr. 838, ]. This court holds that the language of this section is mandatory and that failure to meet the timeframes provided bars a claim from being heard, especially when read in the context of § 45a-363(b).
The parties' undisputed evidence does not reveal a genuine issue of material fact as to whether the defendant made application to the Probate Court within thirty days of the rejection of claim. Although the parties dispute how the communications between the parties operate under the applicable statutes, they do not dispute that the communications occurred, which this court holds as material to determining the timeliness of the defendant's probate claim. The Probate Court did not have the authority to hear the defendant's Probate Court claim and enter the decree, dated October 8, 2015, granting, in part, the defendant's motion for order and surcharge.
V
CONCLUSION
For the foregoing reasons, the court grants the plaintiff's motion for summary judgment.
So ordered.