Walter R. Oliver v. Kenneth Oliver, Sr. (2011)

MEMORANDUM OF DECISION

On June 2, 2011, the plaintiff, Walter R. Oliver, filed a probate appeal pursuant to General Statutes §§ 45a–186 and 52–592, against the defendant, Kenneth Oliver, Sr., the executor of the estate at issue.   The plaintiff appeals from the Probate Court's July 27, 2010 order and decree accepting the accounting of the defendant and denying the accounting of the plaintiff.   The defendant filed a motion to dismiss on June 20, 2011, along with a memorandum of law, an affidavit and exhibits.   The plaintiff filed a memorandum in opposition to the defendant's motion on July 25, 2011, to which the defendant filed a reply memorandum on July 29, 2011.   This matter was heard at the August 1, 2011 short calendar.

“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.)  Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008).  “Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.”  St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).  “Such a motion may be granted only where it clearly appears on the face of the entire record that the court is without jurisdiction.”   Baskin's Appeal from Probate, 194 Conn. 635, 639 n.4, 484 A.2d 934 (1984).

In his motion to dismiss, the defendant asserts that the plaintiff's appeal is untimely under General Statutes § 45a–186.   He also notes that the Probate Court's decision was mailed on July 29, 2010, and that the plaintiff's appeal was not filed until June 2, 2011, more than ten months later.   Moreover, the defendant argues that the accidental failure of suit statute, General Statutes § 52–592, does not save the plaintiff's appeal from dismissal because it does not apply to probate appeals.   The defendant submits an affidavit in support of his motion to dismiss, along with a copy of the envelope in which the Probate Court's July 27, 2010 order was sent, dated July 29, 2010.

In his memorandum in opposition to the motion to dismiss, the plaintiff admits that he erroneously filed his appeal from the Probate Court by filing a motion for appeal with the Probate Court, rather than by filing a complaint with the Superior Court.   After the Probate Court returned the plaintiff's motion to his counsel on June 2, 2011, however, the plaintiff notes that he immediately filed his appeal with the Superior Court and served the defendant.   Thus, the plaintiff argues that the present appeal is brought pursuant to both the probate appeal statute, § 45a–186, and the accidental failure of suit statute, § 52–592.   Moreover, the plaintiff argues that “[b]ecause [he] anticipated the defense of the statute of limitations and thereby relied on § 52–592,” the defendant should have filed a motion to strike rather than a motion to dismiss, and thus, the court should deny the defendant's motion to dismiss.

The defendant filed a reply memorandum on July 29, 2011, in which he reiterates his claim that § 52–592 does not apply to probate appeals.   Moreover, the defendant argues that the motion to dismiss is the proper vehicle to challenge the timeliness of the plaintiff's appeal because “the time limit at issue in this case is a jurisdictional prerequisite to the [c]ourt considering the [a]ppeal rather than a statute of limitations.

“The right to appeal from a decision of the Probate Court is statutory ․ 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.)   Corneroli v. D'Amico, 116 Conn.App. 59, 63, 975 A.2d 107, cert. denied, 293 Conn. 928, 980 A.2d 909 (2009).

Section 45a–186(a) provides in relevant part:  “Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may, not later than forty-five days after the mailing of an order, denial or decree for a matter heard under any provision of section 45a–593, 45a–594, 45a–595 or 45a–597, sections 45a–644 to 45a–677, inclusive, or sections 45a–690 to 45a–705, inclusive, and not later than thirty days after mailing of an order, denial or decree for any other matter in a court of probate, appeal therefrom to the Superior Court.”

“Prior to October 1, 2007, General Statutes § 45a–186 provided that appeals from probate were commenced by motion to the probate court which was then required to issue an order regarding the notice to be provided to interested parties.   Thereafter, an appeal could be filed in the Superior Court but General Statutes § 45a–187(a) required that the appeal be taken ‘within thirty days,’ unless the appealing party lacked actual notice.  Corneroli v. D'Amico, [supra, 116 Conn.App. 64].   In 2007, the General Assembly amended General Statutes § 45a–186 to provide that all appeals from probate be commenced by directly filing a complaint with the Superior Court.  P.A. 07–116, § 2. The applicable portion of the statute requires that an appeal be brought ‘not later than thirty days after mailing of an order, denial or decree ․ in a court of probate.’  General Statutes § 45a–186(a).   The Appellate Court has determined that ‘[t]he meaning of § 45a–186(a), as amended by P.A. 07–116 ․ is plain and unambiguous.’  Corneroli v. D'Amico, supra, 116 Conn.App. 65.  ‘A party appealing to the Superior Court from the Probate Court is required to commence the appeal by filing it with the Superior Court clerk within thirty days of the order, denial or decree of the Probate Court.   Failure to do so deprives the Superior Court of subject matter jurisdiction and renders such an untimely appeal subject to dismissal.  Id. at 67.’  “ Sills v. Spinner, Superior Court, judicial district of New Haven, Docket No. CV 08 4033288 (July 12, 2010, Lager, J.).

Moreover, in Metcalfe v. Sanford, 271 Conn. 531, 535, 858 A.2d 757 (2004), the Connecticut Supreme Court held that the accidental failure of suit statute, § 52–592, does not apply to probate appeals because a probate appeal does not constitute an “action” within the meaning of that statute.¹  The court reasoned:  “As with appeals from administrative agencies, the legislature has provided for prompt resolution of issues and finality in decisions by establishing a relatively short time limit within which an appeal from probate may be taken.   Our legislation has always favored the speedy settlement of estates, and to that end has carefully limited the time within which ․ appeals [from probate] must be taken ․ Accordingly, [§ 45a–186] requires that an appeal from probate must be taken within thirty days except in limited circumstances.   This time limit provides for the prompt settlement and administration of estates by giving interested parties confidence in the status of the estate within a reasonable time period.

“If we were to conclude that § 52–592(a) applies to probate appeals, this confidence would evaporate whenever judgment was rendered against the plaintiff in a probate appeal for one of the reasons listed in the statute.”  (Citation omitted;  internal quotation marks omitted.)  Id., 537.

In the present matter, the plaintiff attempted to file his probate appeal in accordance with procedures that were in effect before the legislature amended the probate appeal statutes.   The plaintiff does not dispute that his appeal to this court is untimely.   Thus, there is no question that the plaintiff's appeal is outside of the thirty-day requirement in § 45a–186(a).   The only question is whether the plaintiff's attempted use of § 52–592 saves this matter from dismissal.   Despite the plaintiff's suggestion to the contrary, the Appellate Court clearly stated in Corneroli that a party's failure to file a timely probate appeal with the Superior Court implicates subject matter jurisdiction, the lack of which warrants dismissal of an appeal.   Furthermore, under Metcalfe, § 52–592 does not apply to probate appeals.   For all of these reasons, the plaintiff's probate appeal is untimely under § 45a–186(a), and the court lacks jurisdiction over the appeal.   As a result, the defendant's motion to dismiss is granted.

Howard F. Zoarski, J.T.R.

FOOTNOTES

FN1. Section 52–592(a) provides:  “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form;  or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”.  FN1. Section 52–592(a) provides:  “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form;  or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”

Zoarski, Howard F., J.T.R.