Estate of Charles Tutorino v. Charlene Tutorino (2011)

MEMORANDUM OF DECISION

This summary process action was brought by the plaintiff, Estate of Charles Tutorino (The Estate), against the defendant, Charlene Tutorino, for right or privilege previously held but now terminated.   The defendant has moved to dismiss the action based on her claim that the court lacks jurisdiction because of the plaintiff's lack of standing.   The defendant alleges that the plaintiff is not the proper party to file this action because the property, on which the defendant resides and is the subject of this action, is not owned by the estate.

“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.)  Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2nd 71 (2006).   When a court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light.   In this regard, the 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.  Cogswell v. American Transit, Ins. Co., 282 Conn. 505, 923 A.2d. 638 (2007).

In this case, the action is brought by the plaintiff after authorization by the probate court.   The property which is the subject of this litigation is named in the inventory of the estate in the probate matter.   Even the defendant concedes the property is listed in the inventory of the estate.   However, the defendant does claim the property is listed in error either by the fiduciary in preparing the inventory or by a number of title searchers, which may date back as far as 1938, who have included the property as part and parcel of the estate.   She further claims that this error of fact deprives the plaintiff of standing to bring this action.

In order to ascertain if the plaintiff lacks standing to maintain this action, the court must view the facts in a manner most favorable to the pleader.   The court, in reviewing the pleadings, finds that:  (1) the plaintiff is exercising its fiduciary duties in acting in the best interest of the estate;  (2) it has the authorization by the probate court to pursue this summary process action;  (3) the property is listed in the inventory of the estate;  and (4) the defendant is in possession of the property.   While a claim of the error in the inventory may be explored at a later time or more appropriately, at probate court or in an appeal thereof, for the purpose of the Motion to Dismiss, this court is not required to make that determination at this time.   Therefore, the court finds that the plaintiff does not lack standing to bring this action.

Lastly, the court does not find that the defendant is entitled to a full evidentiary hearing on its Motion to Dismiss which would have included witnesses and almost 30 pieces of evidence.   It is the court's discretion to determine if such a hearing is necessary for its ruling on a Motion to Dismiss.   The court finds no support, in the cases cited by the defendant in its argument, that such a hearing is mandatory.

Accordingly, the Motion to Dismiss is denied.

MOORE, J.

Moore, Sheridan, J.