Mark Heinonen v. Arthur Scott (2010)

MEMORANDUM OF DECISION

The action is a probate appeal arising from the Probate Court's “most recent decision (4/6/10) denying the appellant an opportunity to present new testimony and reargue for Arthur Scott['s] removal as executor of his wife's estate.”

Barbara H. Scott died on December 1, 2006, as a resident of Sherman, Connecticut.   The principal asset of the estate of Barbara H. Scott is the real property located at 138 Route 37 South, Sherman, Connecticut.   The plaintiff, Mark Heinonen is the adult son of Barbara H. Scott and a specific co-devisee of the property along with his brother, Karl Heinonen.   On June 4, 2009, the plaintiff filed a petition to remove Arthur Scott as executor of the estate.   The Probate Court held a hearing on the plaintiff's removal petition on July 21, 2009, and issued a decree, dated July 22, 2009, denying the plaintiff's petition.   On March 31, 2010, the plaintiff filed a motion to reargue his removal petition with the Probate Court based upon the accumulation of new and significant evidence.   In response, the Probate Court issued a notice, dated April 6, 2010, in which it declined to hold a hearing on the plaintiff's motion to reargue under the discretionary authority of General Statutes § 45a-128(d) and recited the fact that under the statute the Probate Court did not have authority to permit reargument of a matter based upon the accumulation of new and significant evidence.   In his complaint, the plaintiff alleges that the “Probate Court was in error for failing to remove Arthur Scott as executor of his wife's estate” and asks this court to “dismiss” Arthur Scott as executor of the estate.

On July 2, 2010, the defendants filed a motion to dismiss the plaintiff's appeal from Probate Court on the ground that it is untimely filed under General Statutes § 45a-187, and the court, therefore, does not have subject matter jurisdiction over the appeal.   The defendants submitted a memorandum of law and an affidavit in support of their motion.   On July 12, 2010, the plaintiff filed an objection to the motion to dismiss, and a memorandum in opposition.   Argument was heard on July 26, 2010.

I.

“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 ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1155 (2005).  “[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action.”  Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993).

“[I]n ruling on a motion to dismiss, the trial court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations construing them in a manner most favorable to the pleader.”   (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003).  “The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ․ Where, however ․ the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint.”  (Internal quotation marks omitted.)  Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).

“Our legislation has always favored the speedy settlement of estates, and to that end has carefully limited the time within which such appeals [from probate] must be taken ․ It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation ․ Our courts of probate have a limited jurisdiction and can exercise only such powers as are conferred on them by statute ․ They have jurisdiction only when the facts exist on which the legislature has conditioned the exercise of their power ․ The Superior Court, in turn, in passing on an appeal, acts as a court of probate with the same powers and subject to the same limitations ․ In acting on an appeal from probate, the Superior Court does not exercise the jurisdictional powers vested in it by the constitution but, instead, exercises a special and limited jurisdiction conferred on it by the statutes.”  (Citations omitted;  internal quotation marks omitted.)  Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 5 65-66, 192 A.2d 44 (1963).

II.

The defendants argue that the court lacks subject matter jurisdiction as to all defendants because the plaintiff failed to file a timely motion to reargue before the Probate Court, as required under General Statutes § 45a-128(b).  Thus, in light of the fact that § 45a-128(b) requires any application to reconsider, reargue, modify, or revoke a prior Probate Court order or decree to be made or filed within one hundred twenty days after the date of such order or decree, the plaintiff's motion to reargue was not timely and his appeal must be dismissed for lack of subject matter jurisdiction.   In response, the plaintiff argues that the motion to dismiss should be denied because his appeal was filed within thirty days of the probate decree and properly served upon the defendants.

General Statutes § 45a-128(b) provides, in relevant part:  “[A]ny order or decree made by a court of probate may, in the discretion of the court, be reconsidered and modified or revoked by the court, on the court's own motion or on the written application of any interested person.   Such application shall be made or filed within one hundred twenty days after the date of such order or decree and before any appeal is allowed or after withdrawal of all appeals.   The court may reconsider and modify or revoke any such order or decree for any of the following reasons:  (1) For any reason, if all parties in interest consent to reconsideration, modification or revocation, or (2) for failure to provide legal notice to a party entitled to notice under law, or (3) to correct a scrivener's or clerical error, or (4) upon discovery or identification of parties in interest unknown to the court at the time of the order or decree.”

As previously stated, the plaintiff's petition to remove Arthur Scott as executor was filed on June 4, 2009, and denied pursuant to the Probate Court's decree, dated July 22, 2009.   The plaintiff did not file his motion to reargue the July 22, 2009 decree until March 31, 2010, 252 days after the issuance of the Probate Court's decree.

Since the plaintiff filed his motion to reargue 252 days after the issuance of the Probate Court's decree, he was statutorily barred from obtaining reargument.   Thus, since the superior court acts as a Probate Court with the same powers and subject to the same limitations, it is precluded from hearing the plaintiff's reargument.   Therefore, the defendants' motion to dismiss is granted and the court need not address the defendants' other arguments.

Marano, J.

Marano, Richard M., J.