Harwood Loomis v. Geraldine Lupoli (2011)

MEMORANDUM OF DECISION IN RE MOTIONS TO DISMISS (# 101) (# 103)

FACTS

On March 21, 2011, the plaintiff, Harwood Loomis, filed a two-count complaint.   In the first count, which is a probate appeal, he alleges that the Probate Court “never ruled on” his claim for compensation with regard to services that he performed for the estate of Helen Wallace between 1995 and 2001.   He also alleges that the Probate Court held a hearing and granted a motion by Geraldine Lupoli,¹ the administratrix of the estate, to quash his subpoena seeking records, even though his attorney was “without notice, out of the country and was not heard.”   The Probate Court's order, dated February 10, 2011, is affixed to the complaint and states:  “And it is ORDERED AND DECREED THAT ․ [t]he Motion to Quash, procedurally entered, is now decided substantively.   The merits of the debate are whether a deposition should proceed under C.G.S. 45a–365 on an administrative claim, in this long running decedent's estate, that relates to matters up to 2001, last heard from on August 30, 2004.   Simply, the Administratrix has a right to decline to pay;  she has done so;  and further action should be brought in Superior Court.”   In the second count, which is a breach of contract claim, Loomis alleges that Lupoli breached her “contractual obligations” by “fail[ing] to perform” with respect to his compensation for the services provided.

On April 28, 2011, Lupoli filed the motions presently before the court.   Lupoli first moves to dismiss count one of the complaint on the ground that the complaint was not timely filed and therefore the court lacks subject matter jurisdiction over the appeal.   Lupoli next moves to dismiss count two on the ground that Loomis “cannot ․ include an action for a breach of contract within this statutory appeal ․” Lupoli also moves, in the alternative, to strike count two on the ground that Loomis failed to commence the contract action within the applicable statute of limitations.   In support of her various motions, Lupoli filed memoranda of law.   Subsequently, Loomis filed an objection, Lupoli filed a response and the parties argued the relevant issues at short calendar on July 25, 2011.

DISCUSSION

The principles governing a motion to dismiss are well established.   Practice Book § 10–31(a) provides in pertinent part that “[t]he motion to dismiss shall be used to assert ․ lack of jurisdiction over the subject matter ․” “Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.”   (Internal quotation marks omitted.)  Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).  “[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “If, however, the defendant submits ․ no proof to rebut the plaintiff's jurisdictional allegations ․ the plaintiff ․ may rest on the jurisdictional allegations therein.”   (Citation omitted.)  Conboy v. State, 292 Conn. 642, 652, 974 A.2d 669 (2009).   In such a case, “a 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.)  Id., 651.  “[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).

I

Lupoli maintains that the first count should be dismissed because Loomis did not timely file his complaint in accordance with General Statutes § 45a–186(a),² which sets forth a thirty-day time limit to appeal a decision of the Probate Court.   Lupoli argues that Loomis' failure to comply with this time limit deprives the court of subject matter jurisdiction over his appeal.   Loomis responds that he has found “no support whatsoever ․ that the late filing of an appeal deprives this court of jurisdiction” and cites to several cases purporting to hold that the late filing of an appeal “does not render it void.”   Loomis also counters that the motions to dismiss should be denied because they were not filed within thirty days of Lupoli's March 28, 2011 appearance as required by Practice Book § 10–30.³

“The right to appeal from a decision of the Probate Court is statutory.”   Corneroli v. D'Amico, 116 Conn.App. 59, 63, 975 A.2d 107, cert. denied, 293 Conn. 928, 980 A.2d 909 (2009).  “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 ․ 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, 565–66, 192 A.2d 44 (1963).

Section 45a–186(a) provides in relevant part that any person aggrieved by any order of the Probate Court in any matter “unless otherwise specially provided by law, may ․ not later than thirty days after mailing of an order, denial or decree ․ appeal therefrom to the Superior Court.   Such an appeal shall be commenced by filing a complaint in the superior court ․” Loomis alleges in his complaint that the Probate Court mailed its decree on February 15, 2011.   Moreover, Loomis did not file his complaint until thirty-four days later on March 21, 2011, which puts his appeal outside of the permitted time frame established by § 45a–186(a).

This provision, however, cannot be read in isolation from the other statutes governing probate appeals.  “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 ⁴ directs us to first 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.”  (Emphasis added;  internal quotation marks omitted.)   Fedus v. Planning & Zoning Commission, 278 Conn. 751, 756, 900 A.2d 1 (2006).

In particular, General Statutes § 45a–187 sets forth additional time requirements.  Section 45a–187 provides in relevant part:  ‘Time of taking appeals. (a) An appeal under section 45a–186 by persons of the age of majority who are present or who have legal notice to be present, or who have been given notice of their right to request a hearing or have filed a written waiver of their right to a hearing, shall be taken within thirty days, except as otherwise provided in this section.   If such persons have no notice to be present and are not present, or have not been given notice of their right to request a hearing, such appeal shall be taken within twelve months ․” (Emphasis added.)   Historically, this statute has “limit[ed] the time for appeal from the Probate Court.”  Phinney v. Rosgen, 162 Conn. 36, 39, 291 A.2d 218 (1971).   Originally Section 45a–186(a) did not contain any time limitation for an appeal from probate court.   Because the time limit in § 45a–186(a) is qualified by the clause, “unless otherwise specially provided by law,” § 45a–186(a) unambiguously gives way to § 45a–187(a) where the latter is applicable.

This conclusion is bolstered by the histories of §§ 45a–186 and 45a–187.   While the aforementioned time constraints in § 45a–187 have been in effect since at least 1949;  see General Statutes (1949 Rev.) § 7072; ⁵  § 45a–186 contained no language limiting the time for probate appeals until it was amended by No. 07–116 of the 2007 Public Acts, § 2, which implemented its current statutory language.   Prior to P.A. 07–116, § 45a–186(a) provided only that “[a]ny person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the Superior Court in accordance with subsection (b) of this section.”   General Statutes (Rev. to 2007) § 45a–186(a).   Subsection (b) in turn provided that such appeals shall be filed “in the superior court for the judicial district in which such court of probate is located ․” General Statutes (Rev. to 2007) § 45a–186(b).  Since P.A. 07–116 did not repeal § 45a–187(a), the amendment to § 45a–186(a) must be construed as supplementing, rather than supplanting, § 45a–187(a).⁶  “The legislature is presumed to be aware and to have knowledge of all existing statutes and the effect which its own action or nonaction may have on them.”   (Internal quotation marks omitted.)  Nunno v. Wixner, 257 Conn. 671, 682, 778 A.2d 145 (2001).

Under the facts alleged, which are undisputed, § 45a–187(a), and not § 45a–186(a), governs the time to appeal from the Probate Court.   Specifically, Loomis alleges that his attorney “was without notice, out of the country and was not heard.”  “A person is ‘present’ within the meaning of [§ 45a–187(a) ] if represented at the hearing by an attorney.”   R. Folsom, Connecticut Estates Practice:  Probate Litigation in Connecticut (2d Ed.2009), § 7:4, p.7–17. In addition, “[t]he term ‘no notice to be present’ does not mean actual but legal notice to be present.”  Rosow v. Klein, 22 Conn.Sup. 232, 233, 167 A.2d 925 (1961).  “One has ‘legal notice to be present’ within the meaning of the statute only by some specially directed notice.   This could be by personal service, registered mail, publication in a newspaper, or by some other reasonable method.”   R. Folsom, supra, § 7:4, p. 7–17.   While Loomis does not specifically allege that he lacked legal notice of the hearing, the court must construe the allegations in his favor and indulge “every presumption favoring jurisdiction” at this stage of the proceedings.  Connor v. Statewide Grievance Committee, supra, 260 Conn. 443.   Consequently, under these facts, § 45a–187(a) grants Loomis twelve months to appeal to the Superior Court.   Because Loomis commenced his appeal on March 21, 2011, well within the operative time allowed, the motion to dismiss count one is denied.

II

Lupoli next asserts that the court lacks subject matter jurisdiction over the breach of contract action alleged in the second count, and, therefore, it should be dismissed.   Lupoli's central contention is that Loomis “cannot include in his appeal ․ a claim over which the Probate Court had no jurisdiction and, moreover, which the Probate Court did not even decide.”   Loomis maintains, in an argument raised during short calendar, that the court is not without jurisdiction and that his claim is permitted by General Statutes §§ 45a–399 ⁷ and 45a–401.⁸

“Pursuant to ․ § 45a–399 ․ the fiduciary of the decedent's estate ․ may give written notice to the claimant of the disallowance of his claim, and unless the claimant commences a suit against the fiduciary within four months, the claim is barred.   In lieu of the procedures set forth in § 45a–399, however, the claimant is authorized to appeal the disallowance of his claim to the [P]robate [C]ourt pursuant to ․ § 45a–401.   Under § 45a–401(a), the claimant can bring an appeal of the fiduciary's decision to disallow the claim to the [P]robate [C]ourt within thirty days after notice of such disallowance.   The [P]robate [C]ourt has the discretion to grant the application and hear the claim ․” Lee v. Palumbo, Superior Court, judicial district of Fairfield, Docket No. 34 93 52 (April 16, 1999, Ballen, J.).   If the Probate Court denies the application, however, the claimant may “commence suit upon such claim in the manner provided by law within four months after the denial of the application.”  General Statutes § 45a–401(c).

Viewing the allegations in the light most favorable to the pleader, Loomis properly complied with the procedure set forth in § 45a–401 for commencing a lawsuit against a fiduciary of an estate, namely, Lupoli.⁹  In particular, Loomis alleges that (1) he submitted to Lupoli a claim pertaining to services that Lupoli “engaged” him to perform for the estate;  (2) Lupoli disallowed the claim on April 5, 2005;  (3) he applied for the Probate Court to decide the claim on April 18, 2005;  and (4) the Probate Court denied the application by instructing in its February 10, 2011 order that “further action should be brought in Superior Court.”   According to the marshal's return, Loomis then timely commenced suit upon the claim on March 14, 2011, by serving Lupoli with a writ, summons and complaint, which in the second count alleges breach of contract.

Since Loomis followed the appropriate statutory requirements for commencing his contract action, the argument that the court somehow lacks subject matter jurisdiction to adjudicate it is unpersuasive.   In the first place, Lupoli, by arguing that Loomis cannot “include” this action in his appeal, erroneously construes the action as being part of the appeal rather than joined with it.   “[T]he interpretation of pleadings is always a question of law for the court ․” (Internal quotation marks omitted.)  BNY Western Trust v. Roman, 295 Conn. 194, 210, 990 A.2d 853 (2010).   Though the complaint could have been more carefully pleaded, the allegations of count two set forth a distinct breach of contract action that is separate from the appeal.   Indeed, while count one is labeled “Appeal from Probate,” count two is conspicuously not labeled.   Moreover, Loomis clarified during short calendar that count two is a contract claim that is combined with a probate appeal in the same complaint.

Loomis does not do anything jurisdictionally improper by bringing a civil action and a probate appeal together in the same lawsuit.  “[A] plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint.”  Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985).   In Shenkman v. Fenwick Historic District Commission, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 03 0102997 (July 26, 2004, Silbert, J.) (37 Conn. L. Rptr. 545, 545), the plaintiff alleged an administrative appeal in one count of the complaint but in the remaining counts alleged claims for declaratory judgment requesting the court to declare aspects of the administrative decision-making process unconstitutional.   Like Lupoli, the defendant in Shenkman did not “offer a good reason why, had the plaintiffs separately brought both an administrative appeal and a [civil] action, these cases could not and would not have been consolidated eventually in the interest of judicial economy.”  Id. Judge Silbert concluded that “there is nothing inherently wrong with pleading in the alternative” and “[i]f [the cases] could be consolidated, there is no reason why they could not be brought as a single lawsuit.”  Id. Here, the consolidation of the contract action and the probate appeal promotes judicial economy and should be permitted.

Furthermore, Lupoli's assertion that the Probate Court lacks jurisdiction to decide a breach of contract claim is both erroneous and irrelevant to the question of this court's jurisdiction.  Section 45a–401(a) authorizes the Probate Court to decide such a claim when the appropriate statutory requirements are met.   Because here the Probate Court declined to decide the claim, § 45a–401(c) permitted Loomis to bring a lawsuit upon the claim to the Superior Court.   The jurisdiction of this court to decide the breach of contract claim, therefore, flows from Loomis' compliance with the applicable statutes and not from any antecedent jurisdiction of the Probate Court.   Accordingly, the motion to dismiss count two is denied.

III

Lupoli finally argues alternatively, that the court should strike count two because the breach of contract action was not commenced within the six-year statute of limitations provided under General Statutes § 52–576.¹⁰  Lupoli claims that the statute of limitations began to run in 2001, the year Loomis “completed the work and was allegedly owed compensation for his services.”   Thus, argues Lupoli, the action is time-barred.

“[C]ontract actions are generally governed by a six year statute of limitations ․” Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 753 n.9, 905 A.2d 623 (2006), citing General Statutes § 52–576.   Nevertheless, “ordinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike ․ This is because a motion to strike challenges only the legal sufficiency of the complaint and might ․ deprive a plaintiff of an opportunity to plead matters in avoidance of the statute of limitations defense.”  (Internal quotation marks omitted.)  Greco v. United Technologies Corp., 277 Conn. 337, 344 n.12, 890 A.2d 1269 (2006).  “[T]here are two exceptions to that holding.   Those exceptions relate to situations in which a motion to strike, filed instead of a special defense of a statute of limitations, would be permitted.”  Girard v. Weiss, 43 Conn.App. 397, 415, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996).  “The first [exception] is when [t]he parties agree that the complaint sets forth all the facts pertinent to the question [of] whether the action is barred by the [s]tatute of [l]imitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by answer.”  (Internal quotation marks omitted.)  Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993).   The second exception “exists ․ when a statute gives a right of action which did not exist at common law, and fixed the time within which the right must be enforced ․” (Internal quotation marks omitted.)  Greco v. United Technologies Corp., supra, 277 Conn. 344 n. 12.

Neither exception applies here.   This action is a common-law action and the parties have not agreed that the complaint sets forth all the necessary facts.   The court acknowledges, with respect to the first exception, that “courts have permitted a motion to strike to raise the issue of the statute of limitations when the parties do not agree, but only if it is patent that all the facts necessary to a determination of whether the plaintiff's complaint against the ․ defendant is timely and sustainable are apparent on the record.”   (Internal quotation marks omitted.)   Phills v. Greater Bridgeport Transit Authority, Superior Court, judicial district of Fairfield, Docket No. CV 09 4027290 (March 25, 2009, Bellis, J.);   see also Rose v. Proto, Superior Court, judicial district of New Haven, Docket No. CV 04 0489914 (March 9, 2006, Corradino, J.) (stating same principle);  Bruno v. BBC Corp., Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 00 0071634 (September 14, 2001, Arnold, J.) (same).  Even under this standard, Lupoli's motion is still improper because it is not patently clear that all of the facts necessary to the determination of the action's timeliness are apparent on the record.   The statute of limitations must be calculated from the time the right of action accrues.  General Statutes § 52–576(a).  “The law concerning the time when a breach of contract action accrues is well settled.  [I]n an action for breach of contract ․ the cause of action is complete at the time the breach of contract occurs, that is, when the injury has been inflicted.”   (Internal quotation marks omitted.)  Torringford Farms Assn., Inc. v. Torrington, 75 Conn.App. 570, 577, 816 A.2d 736, cert. denied, 263 Conn. 924, 823 A.2d 1217 (2003).   The complaint, however, does not specify when the contract was breached and, contrary to Lupoli's claim, does not allege when Loomis was owed compensation for his services.   Without these facts, a determination as to the timeliness of the cause of action cannot be made.   Thus, Lupoli must raise the statute of limitations issue as a special defense and not in a motion to strike.   The motion to strike count two is therefore denied.¹¹

CONCLUSION

Based on the foregoing:  (1) the motion to dismiss count one is denied;  (2) the motion to dismiss count two is denied;  and (3) the alternative motion to strike count two is also denied.

Wilson, J.

FOOTNOTES

FN1. The two defendants in this action are Geraldine Lupoli in her personal capacity and in her capacity as the administratrix of the estate..  FN1. The two defendants in this action are Geraldine Lupoli in her personal capacity and in her capacity as the administratrix of the estate.

FN2. 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 thirty days after mailing of an order, denial or decree ․ appeal therefrom to the Superior Court.   Such an appeal shall be commenced by filing a complaint in the superior court in the judicial district in which such court of probate is located, or, if the court of probate is located in a probate district that is in more than one judicial district, by filing a complaint in a superior court that is located in a judicial district in which any portion of the probate district is located ․.  FN2. 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 thirty days after mailing of an order, denial or decree ․ appeal therefrom to the Superior Court.   Such an appeal shall be commenced by filing a complaint in the superior court in the judicial district in which such court of probate is located, or, if the court of probate is located in a probate district that is in more than one judicial district, by filing a complaint in a superior court that is located in a judicial district in which any portion of the probate district is located ․

FN3. Practice Book § 10–30 provides in relevant part:  “Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.”.  FN3. Practice Book § 10–30 provides in relevant part:  “Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.”

FN4. Section 1–2z provides:  “The meaning of a statute shall, in the first instance, be ascertained from 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.”.  FN4. Section 1–2z provides:  “The meaning of a statute shall, in the first instance, be ascertained from 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.”

FN5. Former § 7072 provides in relevant part:  “All such appeals, by those of full age and present or who have legal notice to be present, shall be taken within one month, and, if they have no notice to be present and are not present, then within twelve months.”.  FN5. Former § 7072 provides in relevant part:  “All such appeals, by those of full age and present or who have legal notice to be present, shall be taken within one month, and, if they have no notice to be present and are not present, then within twelve months.”

FN6. The legislature recently passed No. 11–128 of the 2011 Public Acts, which, effective October 1, 2011, clarifies the provisions at issue.   In particular, § 11 of P.A. 11–128 amends § 45a–186(a) to specify that its thirty-day deadline applies “[e]xcept as provided in [§ ]45a–187 ․” “[A]n amendment which in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act.”  (Internal quotation marks omitted.)  Dept. of Social Services v. Saunders, 247 Conn. 686, 702, 724 A.2d 1093 (1999)..  FN6. The legislature recently passed No. 11–128 of the 2011 Public Acts, which, effective October 1, 2011, clarifies the provisions at issue.   In particular, § 11 of P.A. 11–128 amends § 45a–186(a) to specify that its thirty-day deadline applies “[e]xcept as provided in [§ ]45a–187 ․” “[A]n amendment which in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act.”  (Internal quotation marks omitted.)  Dept. of Social Services v. Saunders, 247 Conn. 686, 702, 724 A.2d 1093 (1999).

FN7. Section 45a–399 provides in relevant part:  “When any fiduciary of a decedent's estate required to account in a court of probate is unable to settle or adjust any claim against him as such, or when any such fiduciary and a claimant against him are unable to agree concerning the amount or validity of such claim, such fiduciary may give written notice to such claimant of the disallowance of his claim, wholly or in part, and unless such claimant commences a suit against such fiduciary within four months after such notice has been given, such claimant shall be barred of his claim against such fiduciary, except such part as has been allowed, and of any such claim against the estate.”.  FN7. Section 45a–399 provides in relevant part:  “When any fiduciary of a decedent's estate required to account in a court of probate is unable to settle or adjust any claim against him as such, or when any such fiduciary and a claimant against him are unable to agree concerning the amount or validity of such claim, such fiduciary may give written notice to such claimant of the disallowance of his claim, wholly or in part, and unless such claimant commences a suit against such fiduciary within four months after such notice has been given, such claimant shall be barred of his claim against such fiduciary, except such part as has been allowed, and of any such claim against the estate.”

FN8. Section 45a–401(a) provides in relevant part:  “Whenever a fiduciary of any estate of a deceased person disallows, in whole or in part, the claim of any creditor against the estate, which claim has been presented within the time limited for presenting claims against the estate, such creditor may, in lieu of proceeding under section 45a–399, within thirty days after notice of such disallowance apply to the Court of Probate to receive and decide such claim ․ The court may, in its discretion, grant the application, hear such claim if the application so requests ․” Section 45a–401(c), in turn, provides in relevant part:  “If the application to receive and decide such claim by the court ․ is denied, the creditor may commence suit upon such claim in the manner provided by law within four months after the denial of the application.”.  FN8. Section 45a–401(a) provides in relevant part:  “Whenever a fiduciary of any estate of a deceased person disallows, in whole or in part, the claim of any creditor against the estate, which claim has been presented within the time limited for presenting claims against the estate, such creditor may, in lieu of proceeding under section 45a–399, within thirty days after notice of such disallowance apply to the Court of Probate to receive and decide such claim ․ The court may, in its discretion, grant the application, hear such claim if the application so requests ․” Section 45a–401(c), in turn, provides in relevant part:  “If the application to receive and decide such claim by the court ․ is denied, the creditor may commence suit upon such claim in the manner provided by law within four months after the denial of the application.”

FN9. The court recognizes that § 45a–401 applies only to claims against estates where the decedent's death occurred prior to October 1, 1987.   See General Statutes § 45a–390(b).  Although Loomis does not allege when Wallace, the decedent in this case, died, Lupoli does not submit any evidence proving that Wallace died on or after October 1, 1987.   Consequently, the court must construe the allegations in the light most favorable to Loomis and treat § 45a–401 as the controlling statute for the purpose of deciding this motion.   If evidence is presented at a later date that the death of the decedent occurred after October 1, 1987, the defendant can file a motion for summary judgment at that time..  FN9. The court recognizes that § 45a–401 applies only to claims against estates where the decedent's death occurred prior to October 1, 1987.   See General Statutes § 45a–390(b).  Although Loomis does not allege when Wallace, the decedent in this case, died, Lupoli does not submit any evidence proving that Wallace died on or after October 1, 1987.   Consequently, the court must construe the allegations in the light most favorable to Loomis and treat § 45a–401 as the controlling statute for the purpose of deciding this motion.   If evidence is presented at a later date that the death of the decedent occurred after October 1, 1987, the defendant can file a motion for summary judgment at that time.

FN10. Section 52–576(a) provides in relevant part:  “No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues ․.  FN10. Section 52–576(a) provides in relevant part:  “No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues ․

FN11. Even if the court determines that a statute of limitations defense is properly raised by this motion, it would still be denied.  “In ruling on a motion to strike, the court must construe the facts alleged in a pleading in the manner most favorable to the pleader.”  Atkinson v. Berloni, 23 Conn.App. 325, 328, 580 A.2d 84 (1990).   Viewing the pleadings in this manner, the only possible allegation with respect to a date of breach is Loomis' allegation that Lupoli disallowed his claim for compensation on April 5, 2005.   Since Loomis commenced his contract action on March 14, 2011, within six years of April 5, 2005, his action would not be time-barred..  FN11. Even if the court determines that a statute of limitations defense is properly raised by this motion, it would still be denied.  “In ruling on a motion to strike, the court must construe the facts alleged in a pleading in the manner most favorable to the pleader.”  Atkinson v. Berloni, 23 Conn.App. 325, 328, 580 A.2d 84 (1990).   Viewing the pleadings in this manner, the only possible allegation with respect to a date of breach is Loomis' allegation that Lupoli disallowed his claim for compensation on April 5, 2005.   Since Loomis commenced his contract action on March 14, 2011, within six years of April 5, 2005, his action would not be time-barred.

Wilson, Robin L., J.