Town of Trumbull v. The Estate of Michael Knopick et al. (2011)

MEMORANDUM OF DECISION

BACKGROUND

This action arises out of a municipal tax lien foreclosure.   Following a judgment of foreclosure by sale, the defendant, Helene Knopick, filed two appeals with our Appellate Court.   The underlying facts of this case are set out in detail in Trumbull v. Palmer, 104 Conn.App. 498, 934 A.2d 323 (2007), cert. denied, 286 Conn. 905, 944 A.2d 981 (2008), and Trumbull v. Palmer, 123 Conn.App. 244, 1 A.3d 1121, cert. denied, 299 Conn. 907, 10 A.3d 526 (2010).   The relevant facts, as articulated in each appeal, are set forth below.

On May 27, 1989, Michael Knopick (the decedent) executed his last will and testament, leaving to his wife, the defendant, all of his interest in their residence located in Trumbull, Connecticut (the property).   On June 20, 1989, the decedent died.   On January 19, 1990, the Probate Court admitted the decedent's will to probate, and subsequently appointed the defendant's daughter, Linda Palmer, executrix in accordance with the terms of the will.   Therefore, “[t]itle to the decedent's share of the property subsequently vested in the defendant on January [19], 1990, when the decedent's will was admitted to probate.”  Trumbull v. Palmer, supra, 123 Conn.App. 253.  “A certificate of devise reflecting the defendant's absolute interest in the property, however, was never filed in the land records.” ¹  Id., 246–47.

“From October 1, 1990, and annually thereafter, through October 1, 2000, the plaintiff [the town of Trumbull] assessed and levied a tax on the property and billed the owners of record, the decedent and the defendant ․ None of the taxes assessed on the property during that time were paid.   The plaintiff, therefore, placed certificates of lien in the land records for each delinquent tax ․ In August 2002, the plaintiff commenced an action seeking to foreclose the eleven municipal tax liens against the property.”  (Citations omitted;  internal quotation marks omitted.)  Id., 247.  “In its complaint ․ the plaintiff alleged that “[o]n or about [the dates of assessment], [t]he Estate of Michael A. Knopick and [the defendant] were the record owners of [the property].” ²  (Internal quotation marks omitted.)  Trumbull v. Palmer, supra, 104 Conn.App. 503.  “Following a hearing on September 13, 2005, the court rendered judgment of foreclosure by sale with a sale date of November 12, 2005.   The court found the amount of debt to be $110,479.74 and the value of the residence to be $365,000.   Notice of the judgment was issued on September 27, 2005.”  Id., 501.

After two unsuccessful appeals to our Appellate Court,³ the defendant filed the present motion to dismiss on April 21, 2011.   In its motion, the defendant argues that the court lacks subject matter jurisdiction over the present case and personal jurisdiction over the defendant.   On May 13, 2011, the plaintiff filed a memorandum of law in opposition to the motion to dismiss.   Additional facts will be set forth below as necessary.

DISCUSSION

Practice Book § 10–31 provides in relevant part:  “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, [and] (2) lack of jurisdiction over the person ․” “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.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “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, 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.)  Hayes Family Ltd. Partnership v. Glastonbury, 132 Conn.App. 218, 221 (2011).

In her memorandum, it appears ⁴ that the defendant argues that the court lacks subject matter jurisdiction on the following grounds:  (1) The plaintiff's action was commenced against a nonlegal entity and is void ab initio;  (2) the plaintiff's withdrawal of the claims against the estate and Palmer withdrew any claims against the defendant in her capacity as a beneficiary, and therefore, no action is before the court;  (3) the plaintiff assessed taxes and filed liens against the decedent and not Palmer, and therefore, the plaintiff lacks standing to bring a foreclosure action involving the tax liens;  (4) the plaintiff's action is not ripe for adjudication and is nonjusticiable, as statutory condition precedents were not satisfied pursuant to General Statutes § 45a–368; 5  (5) the plaintiff lacks standing to seek determinations and declarations that the defendant is a beneficiary under the decedent's will;  and (6) the Probate Court has exclusive jurisdiction to declare interests of heirs and distributees in a testate estate pursuant to General Statutes § 45a–431.⁶  Additionally, the defendant contends that the court lacks personal jurisdiction over the defendant, as the plaintiff made no attempt to serve the defendant in the capacity of a beneficiary under the decedent's will.

In opposition, the plaintiff argues that the defendant's personal jurisdiction claim is untimely, as it is filed approximately eight years after the defendant filed her appearance.   The plaintiff further argues that the doctrine of res judicata bars the defendant's motion to dismiss for lack of subject matter jurisdiction.   According to the plaintiff, the defendant “had the opportunity to contest subject matter jurisdiction before trial, at trial, during her first appeal, after remand of the first appeal, and during the second appeal.”   Thus, the plaintiff argues that the court should deny the defendant's motion, “as it greatly affects the finality of judgments and offends the integrity of the Appellate Court's rulings ․”

I

“Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ․ [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ․” (Internal quotation marks omitted.)  Citibank, N.A. v. Lindland, 131 Conn.App. 653, 660, 27 A.3d 423 (2011).  “Trial courts addressing motions to dismiss for lack of subject matter jurisdiction ․ may encounter different situations, depending on the status of the record in the case ․ [L]ack of subject matter jurisdiction may be found in any one of three instances:  (1) the complaint alone;  (2) the complaint supplemented by undisputed facts evidenced in the record;  or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.”  (Internal quotation marks omitted.)  Hayes Family Ltd. Partnership v. Glastonbury, supra, 132 Conn.App. 222.  “It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)   Association Resources, Inc. v. Wall, 298 Conn. 145, 164, 2 A.3d 873 (2010).

“[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time.”  (Internal quotation marks omitted.)  Danzig v. PDPA, Inc., 125 Conn.App. 254, 259, 11 A.3d 153 (2010), cert. denied, 300 Conn. 920, 14 A.3d 1005 (2011), cert. denied, 31 S.Ct. 3077, 180 L.Ed.2d 899 (2011).  “[I]t is clear that, under the common law, a trial court has inherent authority to open and modify a judgment it rendered without jurisdiction.   Such a judgment is void ab initio and is subject to both direct and collateral attack ․ If a court has never acquired jurisdiction over a defendant or the subject matter ․ any judgment ultimately entered is void and subject to vacation or collateral attack.”  (Internal quotation marks omitted.)  Fairchild Heights Residents Assn., Inc. v. Fairchild Heights, Inc., 131 Conn.App. 567, 572, 27 A.3d 467 (2011).

“Our Supreme Court, however, has stated that there are boundaries to challenges concerning the issue of subject matter jurisdiction ․ [T]he modern law of civil procedure suggests that even litigation about subject matter jurisdiction should take into account the importance of the principle of the finality of judgments, particularly when the parties have had a full opportunity originally to contest the jurisdiction of the adjudicatory tribunal ․ Under this rationale, at least where the lack of jurisdiction is not entirely obvious, the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if he did have such an opportunity, whether there are strong policy reasons for giving him a second opportunity to do so.”   (Citations omitted;  internal quotation marks omitted.)  Investment Associates v. Summit Associates, Inc., 132 Conn.App. 192, 197 (2011).

A

The defendant argues that the court lacks subject matter jurisdiction over the plaintiff's action, as it was commenced against the estate, a nonlegal entity, and therefore, the plaintiff's action is void ab initio.   Our Appellate Court in Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985), addressed the issue of an estate's capacity to sue and to be sued.   In Isaac, our Appellate Court held:  “It is elemental that in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue ․ An estate is not a legal entity.   It is neither a natural nor artificial person, but is merely a name to indicate the sum total of the assets and liabilities of the decedent or incompetent ․ Not having a legal existence, it can neither sue nor be sued.”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Id., 600.

Past Superior Court decisions are instructive when applying the holding of Isaac to matters involving subject matter jurisdiction.   In Murphy v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 06 5006820 (July 9, 2008, Zoarski, J.T.R.) (45 Conn. L. Rptr. 844), the trial court held that “[our Appellate Court] did not state that a defendant's lack of legal capacity to be sued implicates the court's subject matter jurisdiction.   In fact, in cases in which a defendant's legal capacity to be sued is at issue ․ courts often discuss the matter in terms of whether the plaintiff has committed a circumstantial error in naming the defendant, and have permitted [the] plaintiffs to amend their complaints to correct such errors.”  Id., 845.   Moreover, in Flynn v. Scaramela, Superior Court, judicial district of Stamford–Norwalk, Docket Nos. CV 105013544, CV 115013600 (June 28, 2011, Karazin, J.T.R.), the trial court stated that “it is apparent that even if a party does not have the capacity to be sued, this fact does not render the court without subject matter jurisdiction ․ [N]aming a wrong defendant will not implicate subject matter jurisdiction if the court still retains the authority to oversee the particular legal controversy.”  (Internal quotation marks omitted.)  Id. Therefore, “the issue does not pertain to the subject matter jurisdiction of the court ․ [but][r]ather, it raises the issue of legal sufficiency of [a plaintiff's] claims ․” (Citation omitted.)  Murphy v. New Haven, supra, 845;  see also Weitz v. Greenwich Police Dept., Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 04 0200464 (January 10, 2005, Jennings, J.) (38 Conn. L. Rptr. 512) (holding that a court lacks personal jurisdiction over a defendant when the defendant is not a legal entity with the legal capacity to be sued).

As a threshold issue, the plaintiff in the present case withdrew its foreclosure action with respect to the estate on June 23, 2003.  Trumbull v. Palmer, supra, 104 Conn.App. 504 n.4.⁷ Moreover, the record is devoid of any evidence that a judgment was rendered against the estate.   As a result, to the extent that the defendant argues that the court lacks subject matter jurisdiction over the estate, this issue is not properly before the court.   See JP Morgan Chase Bank, N.A. v. Zubretsky, 130 Conn.App. 115, 119, 22 A.3d 668 (2011) (“[o]nce the plaintiff withdrew the action [against the defendant], the court no longer had subject matter jurisdiction to issue a decision as to the defendant's claim”).

This court will follow the reasoning of Murphy v. New Haven, supra, 45 Conn. L. Rptr. 844, and its progeny, and hold that the estate's lack of capacity to be sued does not implicate the court's subject matter jurisdiction over the foreclosure action.   Moreover, even if the court lacked subject matter jurisdiction over the estate, as argued by the defendant, the court retains jurisdiction over the plaintiff's action as against the defendant, a record owner of the property.   See Montanaro v. Aspetuck Land Trust, Inc., 103 Conn.App. 237, 242, 928 A.2d 581 (2007) (“[i]f a court has jurisdiction to grant any one of the claims for relief set out in a plaintiff's complaint, the action should not be dismissed for lack of jurisdiction”).

As a result, the defendant's arguments are unavailing.⁸

B

Next, the defendant argues that no action remains before the court, as “[the] [p]laintiff's withdrawal against Palmer in her fiduciary capacity withdrew any claims against [the][d]efendant in the capacity of a devisee/beneficiary because Palmer in her fiduciary capacity is the representative of all beneficiaries under the decedent's will.”  “Under [Connecticut] law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of the case from the docket ․ The court unless [the action] is restored to the docket cannot proceed with it further ․” (Citations omitted;  internal quotation marks omitted.)  Luster v. Luster, 128 Conn.App. 259, 263 n.8, 17 A.3d 1068, cert. granted on other grounds, 302 Conn. 904, 23 A.3d 1243 (2011).   Once an action is withdrawn, the court no longer has subject matter jurisdiction to issue a decision in response to a motion pending before the court.  JP Morgan Chase Bank, N.A. v. Zubretsky, supra, 130 Conn.App. 119.⁹

In the present case, the defendant fails to cite any precedent and the court is unaware of any authority in support of the defendant's position.   Moreover, the plaintiff alleges that the defendant, as record owner of the property, co-owned the property with the estate's beneficiaries.  “By naming the estate as co-owner ․ the plaintiff essentially alleged that the estate's beneficiaries co-owned the property with the defendant, but the identity of those beneficiaries was unknown to the plaintiff at the time of pleading.”   Trumbull v. Palmer, supra, 104 Conn.App. 503.  “In other words, the plaintiff's complaint essentially alleged that the defendant shared ownership of the residence with herself, as devisee.”  (Emphasis added.)   Id., 504 n.3. Thus, even if the plaintiff withdrew its claim against the defendant in her capacity as a beneficiary, as argued by the defendant, the plaintiff's claim against the defendant, as record owner of the property, remains before the court.   Consequently, the defendant's argument fails.

C

Next, the defendant argues that the plaintiff lacks standing, as the plaintiff (1) should have filed the tax liens against Palmer pursuant to General Statutes § 12–47,¹⁰ and therefore, failed to fulfill a statutory condition precedent to the imposition of a valid tax lien;  (2) improperly filed tax liens against the decedent, a dead person, and thus, the tax liens are void ab initio;  and (3) improperly sought a determination through a foreclosure action that the defendant was a beneficiary under the decedent's will.

“If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause.”  (Internal quotation marks omitted.)   Luster v. Luster, supra, 128 Conn.App. 265.  “Standing is the legal right to set judicial machinery in motion.   One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action ․” (Internal quotation marks omitted.)  St. Paul Travelers Cos. v. Kuehl, 299 Conn. 800, 809, 12 A.3d 852 (2011).  “Standing is not a technical rule intended to keep aggrieved parties out of court;  nor is it a test of substantive rights.”  (Internal quotation marks omitted.)  Naier v. Beckenstein, 131 Conn.App. 638, 645, 27 A.3d 104 (2011).   Therefore, “[t]he question of standing does not involve an inquiry into the merits of the case.”  (Internal quotation marks omitted.)   St. Paul's Flax Hill Co-operative v. Johnson, 124 Conn.App. 728, 737 n.8, 6 A.3d 1168 (2010), cert. denied, 300 Conn. 906, 12 A.3d 1002 (2011).  “In the absence of standing, the court has no jurisdiction, as no action in [the] case ever was commenced, as it was void ab initio.”  (Internal quotation marks omitted.)  Fairchild Heights Residents Assn., Inc. v. Fairchild Heights, Inc., supra, 131 Conn.App. 572.

In Connecticut, “[m]unicipalities have no powers of taxation other than those specifically given by statute, and strict compliance with the statutory provisions is a condition precedent to the imposition of a valid tax.”   (Internal quotation marks omitted.)  Sheridan v. Killingly, 278 Conn. 252, 264, 897 A.2d 90 (2006).  “The relevant statutes [regarding a municipality's power of taxation] read as follows:  ‘Any interest in real estate shall be set by the assessors in the list of the person in whose name the title to such interest stands on the land records ․’ General Statutes § 12–64(a).  ‘Upon completion ․ of the final assessment list, the town shall levy a tax on such list ․’ General Statutes § 12–122.  ‘All taxes properly assessed shall become a debt due from the person, persons or corporation against whom they are respectively assessed ․’ General Statutes § 12–161 ․ ‘The interest of each person in each item of real estate, which has been legally set in his assessment list, shall be subject to a lien for that part of his taxes laid upon the valuation of such interest ․’ General Statutes § 12–172.”   Trumbull v. Palmer, supra, 104 Conn.App. 508–09.   Moreover, “General Statutes § 12–181 gives municipal tax collectors the authority to bring suit for the foreclosure of tax liens in the name of the municipality by which the tax was laid ․” (Internal quotation marks omitted.)  Municipal Funding, LLC v. Galullo, 72 Conn.App. 755, 761, 806 A.2d 601, cert. denied, 262 Conn. 915, 811 A.2d 1292 (2002);  see also Middletown v. P & G Enterprises Ltd. Partnership, 45 Conn.Sup. 435, 439, 718 A.2d 90 [22 Conn. L. Rptr. 381] (1998) (“[section] 12–181 is merely a municipal empowerment statute and not a statutory cause of action”).¹¹

Practice Book § 10–70(b) provides in relevant part:  “Any claimed informality, irregularity or invalidity in the assessment or attempted collection of the tax, or in the lien filed, shall be a matter of affirmative defense to be alleged and proved by the defendant.”  “[Section 10–70(b) ] ․ is merely a necessary corollary to the rule dispensing with the burdensome and formalistic requirement that a municipality prove the regularity of every action leading to the imposition of the tax ․ Thus a claimed failure specifically to identify the taxed property or a challenge to the authority of an agent whose actions contributed to the tax may be raised as special defenses ․” (Citations omitted.)  Hartford v. Faith Center, Inc., 196 Conn. 487, 491 n.3, 493 A.2d 883 (1985).   Therefore, Section 10–70 places the burden of proving an invalid tax lien on the defendant rather than requiring a municipality to prove the existence of a proper lien as a condition to recovery.

In the present case, the plaintiff, a municipality, is the proper party to bring the present tax lien foreclosure.   Any irregularity or invalidity of a tax lien filed by the plaintiff does not implicate the plaintiff's standing to bring a tax lien foreclosure.   Rather, any irregularity or invalidity of a tax lien should be pleaded as a special defense.   Furthermore, the underlying intentions of the plaintiff to seek a determination of the decedent's will, as argued by the defendant, does not implicate the plaintiff's standing to bring a municipal tax lien foreclosure.   As a result, the defendant's arguments are unavailing.

D

The defendant argues that § 45a–368 “creates a right of action against a beneficiary of a decedent's estate and imposes condition precedents to enforcement of [a] right of action ․” As a result, the defendant asserts that the plaintiff's claims are not ripe for adjudication, as statutory condition precedents were not satisfied pursuant to § 45a–368.

“A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction.”  (Internal quotation marks omitted.)  Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86, 952 A.2d 1 (2008).   Specifically, “ripeness is a sine qua non of justiciability ․” (Internal quotation marks omitted.)  Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 812, 967 A.2d 1 (2009).  “[T]he rationale of the ripeness doctrine is to prevent courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements ․ Thus, a court must be satisfied that the case before it does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire.”  (Citation omitted;  internal quotations marks omitted.)  Keller v. Beckenstein, 122 Conn.App. 438, 443, 998 A.2d 838, cert. granted on other grounds, 298 Conn. 921, 4 A.3d 1227 (2010).

Section 45a–368 provides in relevant part:  “Subject to the provisions of [General Statutes §§ ]45a–369 to 45a–375, inclusive, a beneficiary is liable, in an action or actions, to the extent of the fair market value on the date of distribution of any assets received by him as a beneficiary from the estate of a decedent, for the expenses of administering the estate, claims, funeral expenses of the decedent, and all taxes for which the estate is liable, which have not previously been recovered out of assets held by the fiduciary ․” Section 45a–368 governs the liability of beneficiaries for claims against a decedent's estate.   The statute “imposes liability for an estate's expenses, claims, funeral expenses and taxes for which the estate is liable on beneficiaries who have received assets from an estate to the extent that such beneficiaries have received estate assets.”  Zanoni v. Lynch, 79 Conn.App. 309, 322 n.6, 830 A.2d 304, cert. denied, 266 Conn. 929, 837 A.2d 804 (2003).

In the present case, the defendant effectively construes the plaintiff's action as being brought pursuant to § 45a–368.   The plaintiff's action, however, is a municipal tax lien foreclosure brought pursuant to §§ 12–172 to 12–181, inclusive.   Liability for property taxes depends upon record ownership of property.   See Interlude, Inc. v. Skurat, 266 Conn. 130, 141, 831 A.2d 235 (2003) (“[a] record owner of real property is liable for payment of property taxes on [the] first day of [the] assessment year”);  see also Practice Book § 10–70(a) (“[i]n any action to foreclose a municipal tax or assessment lien the plaintiff need only allege and prove:  (1) the ownership of the liened premises on the date when the same went into the tax list, or when said assessment was made”).¹²  Therefore, the defendant's liability, within the context of the present tax lien foreclosure, can only be based upon her ownership of the property;  not as the beneficiary of the decedent's estate.   As a result, the defendant's argument fails, as § 45a–368 and any conditions precedent articulated in that statute do not apply to the present case.

E

The defendant argues that § 45a–431 grants exclusive jurisdiction to the Probate Court to declare interests of heirs, devisees and distributees in a testate estate.   Therefore, the defendant contends that the court “lacks subject matter jurisdiction to declare interests of heirs and distributees in a testate estate and to determine [the][d]efendant's alleged interests in [the] decedent's interest in [the] property.”

“[Our Supreme Court] has long recognized that the Superior Court has jurisdiction of all matters expressly committed to it and all others cognizable by any law court of which the exclusive jurisdiction is not given to some other court.   The fact that no other court has exclusive jurisdiction in any matter is sufficient to give the Superior Court jurisdiction over that matter.”   (Internal quotation marks omitted.)  In re Matthew F., 297 Conn. 673, 695, 4 A.3d 248 (2010).  “[T]he general rule of jurisdiction ․ is that nothing shall be intended to be out of the jurisdiction of a Superior Court but that which specially appears to be so;  and ․ nothing shall be intended to be within the jurisdiction of an inferior court but that which is expressly so alleged ․ [N]o court is to be ousted of its jurisdiction by implication.”  (Internal quotation marks omitted.)  Raftopol v. Ramey, 299 Conn. 681, 695, 12 A.3d 783 (2011).

In contrast, “[i]t is well established that courts of probate are statutory tribunals that have no common-law jurisdiction.”  (Internal quotation marks omitted.)  In re Joshua S., 260 Conn. 182, 214, 796 A.2d 1141 (2002).   “[T]here are three types of actions in which the Superior Court does not exercise original jurisdiction:  those involving the custody of a child not the issue of the marriage involved in a divorce, settlement of an executor's or administrator's account, and the question of due execution of a will.”   (Internal quotation marks omitted.)  Id., 216.   The essence of a plaintiff's claim must be rooted in the three types of actions in order to fall within the exclusive jurisdiction of a court of probate.   Fogg v. Estate of Gardella, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 00 0072030 (February 20, 2003, Nadeau, J.) (34 Conn. L. Rptr. 194, 197).

In Sender v. Sender, 56 Conn.App. 492, 743 A.2d 1149 (2000), a defendant appealed from a trial court ruling that found the defendant in contempt of an order directing him to restore funds to two custodial accounts.  Id., 493.   The order arose out of a dissolution of marriage judgment.  Id., 493–94.   On appeal, the defendant argued, inter alia, that the trial court lacked subject matter jurisdiction, as the underlying issue dealt with his actions as a custodian.  Id., 496.   Thus, the defendant contended that the issue was within the exclusive jurisdiction of the Probate Court.  Id. Our Appellate Court, however, rejected the defendant's argument and held that “although the Probate Court would have been an appropriate forum had the dispute involved only the custodian and the minor child, the defendant's actions in his capacity as custodian do not override the fact that the dispute arose in the context of a dissolution action over which the Superior Court had exercised jurisdiction.”  Id., 499.

Section 45a–431 provides in relevant part:  “The Court of Probate shall ascertain ․ the heirs and distributees of, and their respective shares in, each testate estate ․” Therefore, “the Probate Court has sole jurisdiction, incident to the distribution of estates in settlement before it, to ascertain the heirs when necessary.”  Killen v. Klebanoff, 140 Conn. 111, 117, 98 A.2d 520 (1953).

In the present case, the dispute arises out of a municipal tax lien foreclosure of which the court has jurisdiction.   See Hartford v. Pan Pacific Development (Connecticut), Inc., 61 Conn.App. 481, 486, 764 A.2d 1273, cert. denied, 256 Conn. 913, 772 A.2d 1126 (2001) (“the trial court has authority ․ to adjudicate the foreclosure of tax liens according to the laws enacted by our legislature”).   The plaintiff's claim is not rooted in an action seeking a distribution of the decedent's estate.   Consequently, the defendant's argument fails, as the court had subject matter jurisdiction to find the defendant to be the sole owner of the property by virtue of devise.

II

The defendant argues that the plaintiff failed to serve or attempt to serve the defendant in the capacity of a beneficiary under the decedent's will, and therefore, the court lacks personal jurisdiction over the defendant.   In Connecticut, the “[f]ailure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction ․ Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person.”  (Internal quotation marks omitted.)  Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011).  “It is fundamental that jurisdiction over a person can be obtained by waiver ․ Although the filing of an appearance on behalf of a party, in and of itself, does not waive that party's personal jurisdiction claims, [a]ny 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.”   (Citation omitted;  internal quotation marks omitted.)  Id., 399.  “The general waiver rule, however, is inapplicable in situations in which there has been no service of process or attempt of service.”  Bowen v. Seery, 99 Conn.App. 635, 638, 915 A.2d 335, cert. denied, 282 Conn. 906, 920 A.2d 308 (2007).

In the present case, the defendant has not cited any precedent and the court is unaware of any authority that distinguishes between the capacity of an individual and the capacity of a beneficiary for purposes of personal jurisdiction requirements.   Moreover, the plaintiff was not required to serve the defendant within her capacity as a beneficiary of the estate.   The defendant's liability for the relevant tax liens depends upon her title ownership of the property;  not as a beneficiary of the estate.   While the defendant previously shared ownership of the property with the decedent, “[t]itle to the decedent's share of the property subsequently vested in the defendant on January [19], 1990, when the decedent's will was admitted to probate.”  Trumbull v. Palmer, supra, 123 Conn.App. 253.   The judgment of foreclosure by sale was based upon the defendant's being the sole owner of the property, not upon the defendant's being the beneficiary pursuant to the decedent's will.   As a result, the defendant's argument is misplaced.

CONCLUSION

Based on all of the foregoing, the court will deny the defendant's motion to dismiss.

HARTMERE, J.

FOOTNOTES

FN1. “It is fundamental jurisprudence that title to real estate vests immediately at death in a deceased's heirs, or in devisees upon the admission of the will to probate ․ The recording of a probate certificate of devise or descent is necessary only to perfect marketable title.   That certificate furnishes evidence that the heir's or devisee's title is no longer in danger of being cut off by a probate sale to pay debts of the estate and also because it furnishes a record of who received the title ․ Such a probate certificate is not a muniment of title, however, but merely a guide or pointer for clarification of the record.”  (Citation omitted;  internal quotation marks omitted.)  Mitchell v. Redvers, 130 Conn.App. 100, 109–10, n.14, 22 A.3d 659 (2011)..  FN1. “It is fundamental jurisprudence that title to real estate vests immediately at death in a deceased's heirs, or in devisees upon the admission of the will to probate ․ The recording of a probate certificate of devise or descent is necessary only to perfect marketable title.   That certificate furnishes evidence that the heir's or devisee's title is no longer in danger of being cut off by a probate sale to pay debts of the estate and also because it furnishes a record of who received the title ․ Such a probate certificate is not a muniment of title, however, but merely a guide or pointer for clarification of the record.”  (Citation omitted;  internal quotation marks omitted.)  Mitchell v. Redvers, 130 Conn.App. 100, 109–10, n.14, 22 A.3d 659 (2011).

FN2. The Estate of Michael A. Knopick will be referred to as “the estate.”.  FN2. The Estate of Michael A. Knopick will be referred to as “the estate.”

FN3. “In [Trumbull v. Palmer, supra, 104 Conn.App. 498], the defendant claimed that [the trial court, Richards, J.] (1) made improper factual findings that (a) went beyond the scope of the pleadings, (b) were not supported by the evidence and (c) conflicted with provisions of the General Statutes that provide for the taxation of real property, (2) improperly calculated the amount of the debt at the time of rendering judgment, (3) improperly denied her request to open the judgment and (4) improperly denied her request to continue the trial.”  (Internal quotation marks omitted.)  Trumbull v. Palmer, supra, 123 Conn.App. 247 n.3. In Trumbull v. Palmer, supra, 123 Conn.App. 244, “[t]he issues on appeal [were] whether the court abused its discretion by denying (1) Palmer's motions to intervene in her individual and fiduciary capacities, and (2) the motion to open and vacate the judgment.”  Id., 246..  FN3. “In [Trumbull v. Palmer, supra, 104 Conn.App. 498], the defendant claimed that [the trial court, Richards, J.] (1) made improper factual findings that (a) went beyond the scope of the pleadings, (b) were not supported by the evidence and (c) conflicted with provisions of the General Statutes that provide for the taxation of real property, (2) improperly calculated the amount of the debt at the time of rendering judgment, (3) improperly denied her request to open the judgment and (4) improperly denied her request to continue the trial.”  (Internal quotation marks omitted.)  Trumbull v. Palmer, supra, 123 Conn.App. 247 n.3. In Trumbull v. Palmer, supra, 123 Conn.App. 244, “[t]he issues on appeal [were] whether the court abused its discretion by denying (1) Palmer's motions to intervene in her individual and fiduciary capacities, and (2) the motion to open and vacate the judgment.”  Id., 246.

FN4. The defendant's memorandum is convoluted and causes the court great difficulty in its attempt to comprehend the propositions set forth by the defendant.   The court, however, is cognizable of the rule that “[o]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ․ The court must fully resolve it before proceeding further with the case.”  (Internal quotation marks omitted.)  Park National Bank v. 3333 Main, LLC, 127 Conn.App. 774, 778, 15 A.3d 1150 (2011)..  FN4. The defendant's memorandum is convoluted and causes the court great difficulty in its attempt to comprehend the propositions set forth by the defendant.   The court, however, is cognizable of the rule that “[o]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ․ The court must fully resolve it before proceeding further with the case.”  (Internal quotation marks omitted.)  Park National Bank v. 3333 Main, LLC, 127 Conn.App. 774, 778, 15 A.3d 1150 (2011).

FN5. Section 45a–368 provides in relevant part:  “Subject to the provisions of [General Statutes §§ ]45a–369 to 45a–375, inclusive, a beneficiary is liable, in an action or actions, to the extent of the fair market value on the date of distribution of any assets received by him as a beneficiary from the estate of a decedent, for the expenses of administering the estate, claims, funeral expenses of the decedent, and all taxes for which the estate is liable, which have not previously been recovered out of assets held by the fiduciary ․”.  FN5. Section 45a–368 provides in relevant part:  “Subject to the provisions of [General Statutes §§ ]45a–369 to 45a–375, inclusive, a beneficiary is liable, in an action or actions, to the extent of the fair market value on the date of distribution of any assets received by him as a beneficiary from the estate of a decedent, for the expenses of administering the estate, claims, funeral expenses of the decedent, and all taxes for which the estate is liable, which have not previously been recovered out of assets held by the fiduciary ․”

FN6. Section 45a–431 provides in relevant part:  “The Court of Probate shall ascertain ․ the heirs and distributees of, and their respective shares in, each testate estate ․”.  FN6. Section 45a–431 provides in relevant part:  “The Court of Probate shall ascertain ․ the heirs and distributees of, and their respective shares in, each testate estate ․”

FN7. Our Appellate Court has previously interpreted the record in the present case and therefore, the court's interpretation is the law of the case.  “[T]his court follows the well-recognized principle of law that the opinion of an appellate court, so far as it is applicable, establishes the law of the case upon a retrial, and is equally obligatory [on] the parties to the action and [on] the trial court ․ The rule is that a determination once made will be treated as correct throughout all subsequent stages of the proceeding ․” (Internal quotation marks omitted.)  American Diamond Exchange, Inc. v. Alpert, 302 Conn. 494, 509, 28 A.3d 976 (2011)..  FN7. Our Appellate Court has previously interpreted the record in the present case and therefore, the court's interpretation is the law of the case.  “[T]his court follows the well-recognized principle of law that the opinion of an appellate court, so far as it is applicable, establishes the law of the case upon a retrial, and is equally obligatory [on] the parties to the action and [on] the trial court ․ The rule is that a determination once made will be treated as correct throughout all subsequent stages of the proceeding ․” (Internal quotation marks omitted.)  American Diamond Exchange, Inc. v. Alpert, 302 Conn. 494, 509, 28 A.3d 976 (2011).

FN8. The defendant further argues that any action prosecuted against a person who is deceased is null and void and may be attacked collaterally for lack of subject matter jurisdiction.   See O'Leary v. Waterbury Title Co., 117 Conn. 39, 47, 166 A. 673 (1933);  Noble v. Corkin, 45 Conn.Sup. 330, 717 A.2d 301 (1998) [21 Conn. L. Rptr. 547].   In the present case, the plaintiff's action was not commenced against the decedent.   Rather, it was brought against the estate.   Therefore, the defendant's argument is misplaced..  FN8. The defendant further argues that any action prosecuted against a person who is deceased is null and void and may be attacked collaterally for lack of subject matter jurisdiction.   See O'Leary v. Waterbury Title Co., 117 Conn. 39, 47, 166 A. 673 (1933);  Noble v. Corkin, 45 Conn.Sup. 330, 717 A.2d 301 (1998) [21 Conn. L. Rptr. 547].   In the present case, the plaintiff's action was not commenced against the decedent.   Rather, it was brought against the estate.   Therefore, the defendant's argument is misplaced.

FN9. Within the context of enforcing a court order, however, our Supreme Court has stated that:  “In CFM of Connecticut, Inc. v. Chowdhury, [239 Conn. 375, 685 A.2d 1108 (1996), rev'd in part on other grounds, 250 Conn. 147, 735 A.2d 333 (1999) ], [the] court was required to decide, inter alia, whether the trial court had jurisdiction to act on an order that had been issued in a withdrawn case even though no motion to restore the case to the docket had been filed and the trial court had not purported to grant such a motion ․ We concluded that, if the trial court had been required to grant a motion to restore the case to the docket before [acting on the order], we can only regard [the court's] actions as the functional equivalent of the granting of such a motion ․ To read the record any other way would be to blink at reality.   Under the unique circumstances ․ [the court's] action on the motions that were before [it] must be deemed to be the equivalent of restoring the case to the docket for the purpose of exercising the court's inherent powers to enforce its orders and to provide for the due administration of justice.”  (Citations omitted;  internal quotation marks omitted.)  Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 198, 884 A.2d 981 (2005)..  FN9. Within the context of enforcing a court order, however, our Supreme Court has stated that:  “In CFM of Connecticut, Inc. v. Chowdhury, [239 Conn. 375, 685 A.2d 1108 (1996), rev'd in part on other grounds, 250 Conn. 147, 735 A.2d 333 (1999) ], [the] court was required to decide, inter alia, whether the trial court had jurisdiction to act on an order that had been issued in a withdrawn case even though no motion to restore the case to the docket had been filed and the trial court had not purported to grant such a motion ․ We concluded that, if the trial court had been required to grant a motion to restore the case to the docket before [acting on the order], we can only regard [the court's] actions as the functional equivalent of the granting of such a motion ․ To read the record any other way would be to blink at reality.   Under the unique circumstances ․ [the court's] action on the motions that were before [it] must be deemed to be the equivalent of restoring the case to the docket for the purpose of exercising the court's inherent powers to enforce its orders and to provide for the due administration of justice.”  (Citations omitted;  internal quotation marks omitted.)  Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 198, 884 A.2d 981 (2005).

FN10. Section 12–47 provides:  “The estate of any insolvent debtor or deceased person, not distributed or finally disposed of by the Court of Probate and which is required to be set in the list for taxation, may be set in the list in the name of such estate, or of the trustee, administrator or executor thereof, as such, at his option.   Such property or any part thereof, when so set in the list, shall be liable for all taxes legally imposed thereon, for one year from the time when they become due.”.  FN10. Section 12–47 provides:  “The estate of any insolvent debtor or deceased person, not distributed or finally disposed of by the Court of Probate and which is required to be set in the list for taxation, may be set in the list in the name of such estate, or of the trustee, administrator or executor thereof, as such, at his option.   Such property or any part thereof, when so set in the list, shall be liable for all taxes legally imposed thereon, for one year from the time when they become due.”

FN11. See also Redding v. Elfire, LLC, Superior Court, judicial district of Danbury, Docket No. CV 99 0337512 (December 1, 2004, Axelrod, J.T.R.) (“[t]his court holds consistent with [Hartford v. Pan Pacific Development (Connecticut), Inc., 61 Conn.App. 481, 764 A.2d 1273, cert. denied, 256 Conn. 913, 772 A.2d 1126 (2001) ], and [Middletown v. P & G Enterprises Ltd. Partnership, supra, 45 Conn.Sup. 435] that § 12–181 is not a statutory cause of action implicating subject matter jurisdiction”)..  FN11. See also Redding v. Elfire, LLC, Superior Court, judicial district of Danbury, Docket No. CV 99 0337512 (December 1, 2004, Axelrod, J.T.R.) (“[t]his court holds consistent with [Hartford v. Pan Pacific Development (Connecticut), Inc., 61 Conn.App. 481, 764 A.2d 1273, cert. denied, 256 Conn. 913, 772 A.2d 1126 (2001) ], and [Middletown v. P & G Enterprises Ltd. Partnership, supra, 45 Conn.Sup. 435] that § 12–181 is not a statutory cause of action implicating subject matter jurisdiction”).

FN12. “[A]n assessment year commences on the first day of October ․ [and] is the time period for which a property owner is liable for property taxes.”  (Internal quotation marks omitted.)  PJM & Associates, LC v. Bridgeport, 292 Conn. 125, 137, 971 A.2d 24 (2009)..  FN12. “[A]n assessment year commences on the first day of October ․ [and] is the time period for which a property owner is liable for property taxes.”  (Internal quotation marks omitted.)  PJM & Associates, LC v. Bridgeport, 292 Conn. 125, 137, 971 A.2d 24 (2009).

Hartmere, Michael, J.