Maureen Franco v. Mary Camarota et al. (2012)

MEMORANDUM OF DECISION IN RE DEFENDANTS' MOTION TO DISMISS

The present matter is an appeal from the order of the East Haven/North Haven Probate Court approving an application to probate the will of Lucille Franco.   The appeal, which is dated January 13, 2011 and is filed by Maureen Franco as a self-represented party, consists of eight handwritten paragraphs, along with copies of the probate court decree and the written decision of the Probate Judge Michael R. Brandt admitting the disputed will to probate.   The defendants, Mary Camarota, Thomas Franco and Rocco Franco ¹ jointly have moved to dismiss the appeal, claiming that the absence of a sufficient allegation of aggrievement in the appeal deprives the court of jurisdiction.   Although the court agrees that the appeal here, as framed, lacks the required allegation of aggrievement, the court concludes that a motion to dismiss is not the proper procedural vehicle to raise a challenge to this type of deficiency in the appellant's pleadings.   Accordingly, the motion to dismiss is hereby denied.

In the memorandum of law accompanying their motion to dismiss, the defendants rely on Connecticut Supreme Court cases including Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478 (1933), Exchange Buffet Corp. v. Rogers, 139 Conn. 374 (1952), and Feigner v. Gopstein, 139 Conn. 738 (1953), in support of the proposition that an appellant's failure to set forth an adequate statement of aggrievement cannot be cured by amendment, and is a shortcoming that implicates the court's jurisdiction and renders the appeal subject to dismissal.   Although the defendants' reading of these cases is not inaccurate, the defendants overlook that the precedential value of these cases has been significantly undermined by later decisions of our appellate courts.

In Flor v. Pohl, 95 Conn.App. 555 (2006), the Appellate Court held that the trial court erred in finding that an appellant's failure to plead aggrievement in an appeal from probate deprived the court of jurisdiction.   Noting that the trial court's decision had been based on its reading of Hartford Kosher Caterers, Exchange Buffet Corp., and Feigner, the Appellate Court concluded that the trial court there had “mischaracterized [the] import” of these cases;  id., at 558;  and had failed to consider the Supreme Court's later decision in Baskin's Appeal from Probate, 194 Conn. 635 (1984).   As the Appellate Court in Flor explained, Baskin's Appeal had held (contrary to the Hartford Kosher line of cases) that appeals from probate that failed sufficiently to allege aggrievement could, in fact, be amended, and therefore should not be subject to a motion to dismiss.

It follows from the decisions in Flor and Baskin's Appeal that a probate appeal is subject to dismissal only if “it is undisputed as a question of fact” that the plaintiff has no basis upon which to appeal.  Baskin's Appeal from Probate, supra, 194 Conn. 641 n.9. That, however, cannot be said of the case here.   According to the probate court decision appended to the plaintiff's appeal from probate, the plaintiff is one of “the children of the Decedent's deceased brother,” and a party who was listed on the application for probate of the will as one of the “heirs to the Estate.”   The probate court decision further recounts that the plaintiff was actively involved in the probate hearing and raised various objections to the admission of the will and to the decisions rendered by the fiduciary.   Moreover, through her objection to the instant motion to dismiss, the plaintiff asserts that this appeal implicates “the best interests of all legal [sic] interested parties” and that her life and “other people's lives are in danger about these matters.”   Objection to Motion to Dismiss, April 9, 2012, at 1.

Thus, although the plaintiff has not identified in her appeal from probate the precise nature of her aggrievement, the court is persuaded that her status as an heir, augmented by the contentions set forth in her Objection, together create at least “a possibility ․ that some legally protected interest that [the plaintiff] has in the estate has been adversely affected” by the decision of the Probate Court.  McBurney v. Cirillo, 276 Conn. 782, 821 (2006) (“The test for determining whether a party has been aggrieved by a Probate Court decision is whether there is a possibility, as distinguished from a certainty, that some legally protected interest that [the party] has in the estate has been adversely affected ․ This interest may be a direct pecuniary one, or it may consist of an injurious effect upon some legally protected right or status of the appellant.”)   Given that such a possibility exists, this court cannot conclude that the plaintiff here undisputably lacks a legal interest sufficient to establish aggrievement.   Accordingly, the defendants' motion to dismiss must therefore be denied.

The court's ruling, however, does not leave the defendants without recourse.   The defendants remain free to challenge “the sufficiency of the [plaintiff's] pleading rather than the existence of a viable cause of action;” Flor v. Pohl, supra, 95 Conn.App. 561, quoting Baskin's Appeal from Probate, supra, 194 Conn. 643;  through the filing of a motion to strike.²  Such a motion to strike, if granted, would adequately protect the defendants' interests here, and yet, unlike a motion to dismiss, would not operate to deprive the plaintiff of “an opportunity to amend her appeal,” as required by the Appellate Court in Flor v. Pohl, supra, 95 Conn.App. 561.³

For the reasons set forth above, the defendants' motion to dismiss is hereby denied.

THE COURT

Gold, J.

FOOTNOTES

FN1. Since being named as a defendant in the present action, Mary Camarota passed away.   Thomas Franco has been appointed her Administrator, c.t.a., d.b.n. See Notice of Appointment at # 106..  FN1. Since being named as a defendant in the present action, Mary Camarota passed away.   Thomas Franco has been appointed her Administrator, c.t.a., d.b.n. See Notice of Appointment at # 106.

FN2. Baskin's Appeal explains, “a motion to strike is the proper means of attacking a pleading that on its face is legally insufficient, although facts may indeed exist which, if properly pleaded, would establish a cause of action upon which relief may be granted.”  Baskin's Appeal from Probate, supra, 194 Conn. 640.   Because no motion to strike has yet been filed, the court here offers no opinion on the potential merit of such a motion within the context of the present matter..  FN2. Baskin's Appeal explains, “a motion to strike is the proper means of attacking a pleading that on its face is legally insufficient, although facts may indeed exist which, if properly pleaded, would establish a cause of action upon which relief may be granted.”  Baskin's Appeal from Probate, supra, 194 Conn. 640.   Because no motion to strike has yet been filed, the court here offers no opinion on the potential merit of such a motion within the context of the present matter.

FN3. Affording the plaintiff this opportunity, if necessary, to amend her appeal and more clearly to allege her aggrievement seems particularly appropriate given the plaintiff's status as a self-represented litigant.   Courts must be “aware of the difficulties faced by pro se parties and [be] solicitous of their rights,” and where not inconsistent with justice, “construe the rules of practice liberally for pro se litigants.”  Bella Vista Condominium Assoc. v. Byars, 102 Conn.App. 245, 254 (2007)..  FN3. Affording the plaintiff this opportunity, if necessary, to amend her appeal and more clearly to allege her aggrievement seems particularly appropriate given the plaintiff's status as a self-represented litigant.   Courts must be “aware of the difficulties faced by pro se parties and [be] solicitous of their rights,” and where not inconsistent with justice, “construe the rules of practice liberally for pro se litigants.”  Bella Vista Condominium Assoc. v. Byars, 102 Conn.App. 245, 254 (2007).

Gold, David P., J.