Michael Morrell v. Marita Morrell (2011)

MEMORANDUM OF DECISION Re MOTION TO DISMISS (# 101)

The plaintiffs Michael Morrell, Patricia Amarel and Donna Marie Morrell, as co-beneficiaries of the estate of John H. Morrell, commenced this action against Marita Morrell, also a beneficiary of the estate of John H. Morrell, seeking to have declared null and void a “transfer on death agreement” executed in favor of the defendant by the decedent John H. Morrell of a Merrill Lynch account # 887–10318 with a balance of $247,357.01.   The plaintiffs claim that the transfer by the decedent to the defendant prior to his death was made as a result of undue influence, actual and/or constructive fraud, and lack of mental capacity.   The plaintiffs seek a constructive trust of the Merrill Lynch account and monetary damages.   The plaintiffs also are seeking a prejudgment remedy of attachment of said account.

The defendant has moved to dismiss the plaintiffs' cause of action.   The basis for the defendant's motion to dismiss is that the plaintiff Michael Morrell, in his fiduciary capacity as executor of the John H. Morrell estate, previously filed with the Southbury Probate Court an application pursuant to General Statutes § 45a–98 to determine, in relevant part, title to the Merrill Lynch account.   That application sought an order from the Probate Court directing the defendant to turn over the proceeds of the Merrill Lynch account to be included in the probate estate of the decedent.   The application to the Probate Court made essentially the same allegations as asserted in this case, seeking to set aside the transfer of the Merrill Lynch account to the defendant based on lack of mental capacity and undue influence.

The Probate Court (Sutnik, J.), after hearing the application, issued an order dated December 30, 2010.   The order made findings from which Judge Sutnik concluded that the decedent had the mental capacity to transfer the Merrill Lynch account to the defendant, as well as make other monetary transfers.   He also concluded that there was a lack of compelling evidence to find undue influence on the part of the defendant.   The court's order found none of the transfers by the decedent to the defendant should be returned and made part of the decedent's estate.

The plaintiff Michael Morrell, as executor of the estate, filed a motion for appeal from probate with the Probate Court.   The motion was not pursued by the executor and no other statutory appeal was taken by the executor from the Probate Court's December 30, 2010 order.

The defendant now moves to dismiss this action based on the court's lack of subject matter jurisdiction.   The defendant claims that General Statutes § 45a–24 ¹ states that Probate Court orders which are not appealed become final and conclusive and that the plaintiffs' mere assertion of “actual or constructive fraud” in their complaint does not allow them to collaterally attack the validity of the Probate Court's order.

The plaintiffs' response to the motion to dismiss is that they are alleging fraud which allows for collateral attack of the order, and that pursuant to General Statutes § 45–186(g) ² they may proceed in Superior Court because they are seeking prejudgment remedies and damages.

“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.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007);  Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007).

Having reviewed the case law and statutory authority, the court concludes that the motion to dismiss shall be granted.

The court relies specifically on the case of Lundborg v. Lawler, 63 Conn.App. 451, 776 A.2d 519 (2001).   The facts in Lundborg are similar to the facts in this action.   The plaintiff sought to bring a new cause of action in Superior Court after their probate appeal was dismissed on procedural grounds.   The plaintiff similarly claimed that the Superior Court had subject matter jurisdiction because he was seeking damages and had alleged fraud.   The defendant moved to dismiss, claiming lack of subject matter jurisdiction.   The Superior Court agreed and granted the motion to dismiss.

The Lundborg court agreed with trial court and affirmed the dismissal.   First, the court concluded that the claim for damages by the plaintiff did not make the cause of action different or distinguishable from the underlying claim adjudicated by the probate court.   The court concluded “that the plaintiff has failed to demonstrate any legally significant distinction between the arguments that he proffered in his probate appeal and that he now offers in his judicial appeal ․ There is, therefore, the essential identity between his prior and present claims that warrants dismissal of the present claim on the ground of collateral estoppel.”  Id., 458.

Next, the court addressed the plaintiff's fraud claim as follows:

As we understand it, the plaintiff argues that any allegation of fraud in Probate Court proceedings confers jurisdiction on the Superior Court sitting as a court of general jurisdiction.   He claims that such jurisdictional authority exists no matter how thoroughly the fraud was explored, or could have been explored, in prior probate proceedings.   In other words, any allegation of fraud acts as an “open sesame” to permit the reopening of any probate decree.   If that were an accurate statement of law, any litigant disappointed by an adverse Probate Court ruling disallowing a claim of fraudulent misrepresentation would automatically have two independent rights of appeal, one to the Superior Court sitting in probate and one to the Superior Court exercising its normal judicial role.   The merits of the plaintiff's position are far from self-evident.

Id., 458–59.

Therefore, in conclusion, the plaintiffs already have had their claims of lack of mental capacity and undue influence adjudicated and decided by the Southbury Probate Court.   The plaintiffs have failed to cite any supporting authority to distinguish the Probate Court proceeding from the cause of action filed with this court.   The plaintiffs failed to appeal the Probate Court's order.   The plaintiffs have commenced this action to re-litigate the same issues that were decided by the Probate Court.   For the reasons articulated in Lundborg, this court lacks subject matter jurisdiction.   The defendant's motion to dismiss is granted.   Judgment shall enter for the defendant.

Agati, J.

FOOTNOTES

FN1. Sec. 45a–24.  (Formerly Sec. 45–9).   Validity of orders, judgments and decrees.Every order, judgment or decree of a court of probate made by a judge who is disqualified shall be valid unless an appeal is taken as hereinafter specified.   All orders, judgments and decrees of courts of probate, rendered after notice and from which no appeal is taken, shall be conclusive and shall be entitled to full faith, credit and validity and shall not be subject to collateral attack, except for fraud..  FN1. Sec. 45a–24.  (Formerly Sec. 45–9).   Validity of orders, judgments and decrees.Every order, judgment or decree of a court of probate made by a judge who is disqualified shall be valid unless an appeal is taken as hereinafter specified.   All orders, judgments and decrees of courts of probate, rendered after notice and from which no appeal is taken, shall be conclusive and shall be entitled to full faith, credit and validity and shall not be subject to collateral attack, except for fraud.

FN2. Sec. 45a–186.  (Formerly Sec. 45–288).   Appeals from probate.   Venue.  Service of process.   Referral to special assignment probate judge.Nothing in this section shall prevent any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, from filing a petition for a write of habeas corpus, a petition for termination of involuntary representation or a petition for any other available remedy..  FN2. Sec. 45a–186.  (Formerly Sec. 45–288).   Appeals from probate.   Venue.  Service of process.   Referral to special assignment probate judge.Nothing in this section shall prevent any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, from filing a petition for a write of habeas corpus, a petition for termination of involuntary representation or a petition for any other available remedy.

Agati, Salvatore C., J.