Charlene Turturino v. Probate Court

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Superior Court of Connecticut.

Charlene Turturino v. Probate Court

FSTCV106004917S

-- February 04, 2011

MEMORANDUM OF DECISION RE MOTION TO STRIKE (110.00)

I. BACKGROUND

Charlene Turturino filed the present appeal from the Probate Court on May 10, 2010 seeking review of the decision of Judge Hopper, dated April 22, 2010, authorizing Virginia Sanborn to sell property known as 552 River Road in Cos Cob, Connecticut and to commence eviction proceedings against Turturino, who currently resides there.

On November 12, 2010, Turturino claimed this case for the inventory of jury cases.   On December 7, 2010, Sanborn filed a motion to strike the jury claim.1  Sanborn failed to file a memorandum of law in support of this motion.   Turturino filed an objection to Sanborn's motion on January 5, 2011.   The objection was accompanied by a supporting memorandum of law.   Sanborn filed a reply memorandum on January 13, 2011.   The motion and objection were submitted on the papers at short calendar on January 24, 2011.

II. DISCUSSION

Sanborn argues that a jury trial is unavailable in probate appeals where the validity of a will is not in question and no insolvent estate is involved.   Turturino responds by arguing that:  (1) Sanborn's motion should not be considered by this court because it was not filed with a supporting memorandum of law and (2) an appeal of order by the Probate Court which affects title to real property may be properly tried before a jury.

I. Failure to File a Supporting Memorandum of Law

Turturino has objected to the motion based on Sanborn's failure to file a supporting memorandum of law.   Specifically, Turturino argues that a memorandum was required by Practice Book § 34a-17 and that, absent such a filing, this court should refuse to consider the pending motion.2  Sanborn responds by arguing, among other things, that the motion itself “fully addressed” the legal arguments at issue.

When faced with a motion unaccompanied by a memorandum of law ․ courts have tended not to exalt form over substance.”   Yoshu, LLC v. Ward, Superior Court, judicial district of Hartford, Docket No. CV 09 5033580 (August 6, 2010, Sheldon, J.);   see also Adams v. CNA Ins. Cos., Superior Court, judicial district of New Haven, Docket No. CV 044004572 (December 12, 2005, Thompson, J.) (reaching merits despite absence of supporting memorandum when motion itself included legal analysis and reference to statutory authority);  Allyn v. Allyn, Superior Court, judicial district of New London at Norwich, Docket No. 0103953 (September 3, 1999, Solomon, J.) (disregarding absence of initial supporting memorandum when moving party filed reply).

In the present case, the legal arguments at issue, including citations to relevant case law and statutes, were given within the motion and reply memorandum.   Consequently, Turturino was apprised of the legal arguments at issue well before the matter appeared on the calendar.   Therefore, the court will consider the motion despite the initial absence of a supporting memorandum of law.

II. Availability of a Jury Trial

General Statutes § 45a-98a provides, in relevant part:  “(a) ․ Before the initial hearing on the merits of such a matter [at the Probate Court], any interested person may file an affidavit that such person is entitled and intends under General Statutes § 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. (b) If a party fails to file an affidavit of intent to claim jury trial prior to the initial hearing in the Probate Court on the merits, or having filed such an affidavit, fails to bring an action in the Superior Court within the sixty-day period allowed by the Probate Court, the party shall be deemed to have consented to a hearing on the matter in the Probate Court and to have waived any right under Section 52-215 or other applicable law to a trial by jury.”

Section 52-215 provides in relevant part:  “The following-named classes of cases shall be entered in the docket as jury cases upon the written request of either party made to the clerk within thirty days after the return day:  Appeals from probate involving the validity of a will or paper purporting to be such, appeals from the actions of commissioners on insolvent estates ․ All cases not entered in the docket as jury cases under the foregoing provisions ․ shall be entered on the docket as court cases, and shall, with all issues of law and issues of fact ․ be disposed of as court cases.”

An examination of case law confirms this restricted use of jury trials in probate appeals.  “[S]tatutory authority for a jury trial has been extended to appeals from probate in only two limited situations:  where the validity of a will or the decision of a commissioner on an insolvent estate is involved.”   Corazzini v. Sternberg, Superior Court, judicial district of New Haven, Docket No. CV 03 0283480 (July 16, 2003, Wiese, J.) (35 Conn. L. Rptr. 73);  see also Slattery v. Woodin, 90 Conn. 48, 50, 96 A. 178 (1915) (“Since 1826 our statutes have provided for a jury trial in appeals from probate involving the validity of a will, but not in other appeals from probate, thus plainly excluding from the jury docket all appeals from probate except those involving the validity of a will or paper purporting to be such;  and by the common consent of the profession this always has been so understood”).

The present case seeks review of a Probate Court decision relating to a certain piece of real property.   No questions relating to the validity of a will have been raised and there is no indication that an insolvent state is involved.   Therefore, Turturino is not entitled to a jury trial pursuant to Section 52-215 3 Moreover, even if Turturino were entitled to a jury trial on these issues at some point, she has failed to assert that right in the sixty-day period allowed by Section 45a-98a(a).   Therefore, the right to a jury trial has been waived, Section 45a-98a(b), and the motion to strike the case from the jury list is granted.

Taggart D. Adams

SUPERIOR COURT JUDGE

FOOTNOTES

1.  FN1. “[T]he appropriate method for a challenge to a claim for a jury trial is by an objection.”  (Internal quotation marks omitted.)   Burnell v. Willis, Superior Court, judicial district of New Haven, Docket No. CV 99 0429432 (July 7, 2000, Silbert, J.).  “Historically, a motion to strike, pursuant to Practice Book (1978 Rev.) § 282, had been the proper vehicle to strike a jury claim ․ Since the repeal of § 282 in 1996, a party wishing to challenge an improper claim for a jury should file an objection to the claim ․ or the court can treat a motion to strike as an objection to the jury claim.”   McNeil v. Silverman, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 000178460 (November 16, 2000, Hickey, J.) (29 Conn. L. Rptr. 91).   The court determines that the merits of the motion currently pending before it may be reached by treating it as an objection to the jury claim.

2.  FN2. Section 34a-17 relates to motions to strike within the context of juvenile proceedings.   Undoubtably, Turturino intended to reference other provisions of the rules of practice that contain the same requirement.   See Practice Book §§ 10-42, 11-10.

3.  FN3. The case cited by Turturino is inapposite.  Bender v. Bender, 292 Conn. 696, 975 A.2d 636 (2009), involved a civil action for breach of contract and specific performance, not an appeal from the Probate Court.

Adams, Taggart D., J.

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