IN RE: Palmer (2010)

MEMORANDUM OF DECISION

This is an appeal from an order and decree of the Probate Court granting fees of $2,627.50 to a temporary administrator.   The plaintiffs have moved for summary judgment.   They argue that the Practice Book authorizes the filing of a motion for summary judgment in a probate appeal.   Whether they are correct depends on the interpretation of the section of the Practice Book authorizing summary judgment procedure, Practice Book § 17-44.

The rules of statutory construction apply to the interpretation of the Practice Book. State v. Cook, 183 Conn. 520, 521, 441 A.2d 41 (1981).  “The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case ․ When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case ․ In seeking to determine that meaning ․ [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered․  When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ․ We recognize that terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise ․” (Citations omitted;  internal quotation marks omitted.)  Rainforest Cafe, Inc. v. Dept. of Revenue Services, 293 Conn. 363, 371-73, 977 A.2d 650 (2009).

“In accordance with § 1-2z, we first turn to the relevant language of the rule of practice at issue ․” Wiseman v. Armstrong, 295 Conn. 94, 100, 989 A.2d 1027 (2010).  Practice Book § 17-44 provides that a party may move for summary judgment “[i]n any action, except administrative appeals which are not enumerated in Section 14-7 ․” (Emphasis added.)

“In a general sense the word ‘action’ means the lawful demand of one's right in a court of justice;  and in this sense it may be said to include any proceeding in such a court for the purpose of obtaining such redress as the law provides.”  Waterbury Blank Book Mfg. Co. v. Hurlburt, 73 Conn. 715, 717, 49 A. 198 (1901).   While that definition may seem broad enough to include probate appeals, case law has held otherwise.

The Supreme Court has held that “[a]n appeal from a Probate Court to the Superior Court is not an ordinary civil action ․ When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate ․ In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common law jurisdiction, but of a Probate Court ․ The function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo.”  (Citations omitted.)  Kerin v. Stangle, 209 Conn. 260, 263-64, 550 A.2d 1069 (1988).

The plaintiff argues that Practice Book § 10-76 renders probate appeals civil actions.  Practice Book § 10-76(a) provides:  “Unless otherwise ordered, in all appeals from probate the appellant shall file reasons of appeal, which upon motion shall be made reasonably specific, within ten days after the return day;  and pleadings shall thereafter follow in analogy to civil actions.”  (Emphasis added.)   This provision of the Practice Book is not recent vintage.   It is descended from Practice Book (1908), p. 207, Rules of the Superior Court § 13.   Ninety-five years ago, the Supreme Court, in Slattery v. Woodin, 90 Conn. 48, 96 A. 178 (1915);  addressing that statutory ancestor, stated:  “The phrase ‘in analogy to civil actions' expresses the proper status of an appeal from probate, as a special proceeding authorized by statute, but not a civil action.   Independently of the language of the rule, appeals from probate are not civil actions because it has always been held that the Superior Court, while hearing appeals from probate, sits as a court of probate and not as a constitutional court of general or common-law jurisdiction.   It tries the questions presented to it de novo, but in so doing it is not exercising the general jurisdiction conferred upon it by the statutes on which the appellants rely.   It is exercising a special and limited jurisdiction conferred on it by the statute authorizing appeals from probate.   It was solely by force of this statute that the appellants were able to reach the Superior Court at all;  and when reached by that path the Superior Court is a tribunal which has no greater powers than those of the Court of Probate.”   Id., 51.   The Slattery v. Woodin court squarely held that “[a]ppeals from probate are not ‘actions' or ‘civil causes or actions, between party and party.’  “ Id., 50.

Moreover, it is a rule of construction of the Practice Book that no word or phrase is to be treated as superfluous.  Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn.App. 420, 424, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990).   Thus, it is telling that Practice Book § 13-2 defining the scope of discovery, provides:  “In any civil action, in any probate appeal, or in any administrative appeal where the judicial authority finds it reasonably probable that evidence outside the record will be required, a party may obtain ․ discovery of information ․” (Emphasis added.)   See also Practice Book §§ 13-6, 13-9, 13-11, 13-26.   If a probate appeal inhered in the word “action” in Practice Book § 17-44, as the plaintiff maintains, it would inhere in the same word in § 13-2 and it would have been unnecessary for the drafters to expressly mention probate appeals in the latter section.   That they did is strong evidence that a probate appeal is not an action.  “The legislature's use of words to itemize the situations that bring a statute into play [i.e., in Practice Book § 13-2] connotes the legislative intent to exclude that which is not included [in Practice Book § 17-44].”  McNulty v. Stamford, 37 Conn.App. 835, 840, 657 A.2d 1126 (1995).

Though I reach the conclusion by a different route, I agree with Judge Rittenband's holding in In re Banning v. Probate Appeal, Superior Court, judicial district of Hartford, Docket No. CV 08 4036369 (April 21, 2010, Rittenband, J.T.R.) (49 Conn. L. Rptr. 695, 696);  that “a summary judgment motion is not permitted in an appeal from probate.”   I therefore respectfully disagree with Judge Elgo's decision in Ackerman v. Sobol, Superior Court, judicial district of Hartford, Docket No. CV 07 4027616 (November 19, 2007, Elgo, J.).   Accordingly, the plaintiffs' motion for summary judgment is denied.

BY THE COURT

Bruce L. Levin

Judge of the Superior Court

Levin, Bruce L., J.