Samuel Manzo v. John T. Nugent (2012)

MEMORANDUM OF DECISION ON DEFENDANT NUGENT'S MOTION TO DISMISS (# 145)

I. INTRODUCTION

This is a probate appeal relating to the disposition of certain assets that belonged to Josephine Smoron.   The plaintiff, Samuel Manzo, brought this appeal seeking reversal of two orders of the Southington Probate Court.   The first order, issued on May 12, 2009, authorized the defendant, John T. Nugent, as conservator of Josephine Smoron, to establish two trusts for Ms. Smoron's benefit.   After this order was entered, Nugent transferred real property owned by Ms. Smoron into one trust, and other assets of Ms. Smoron into a second trust.   The second order being challenged was issued on July 20, 2010 and denied the plaintiff's motion to reconsider, modify or revoke the May 12, 2009 order.

The defendant claims that the appeal must be dismissed because:  1) the plaintiff is not an aggrieved party, and, therefore, lacks standing;  and 2) the appeal is untimely.

II. RELEVANT FACTS AND ALLEGATIONS

The following facts relevant to resolution of the defendant's claims are taken from the allegations of the plaintiff's complaint, which must be accepted as true for purposes of this motion, or are a matter of record and not in dispute.   On January 15, 2008, the Probate Court appointed Nugent as the conservator of the person and estate of Josephine Smoron.   On or about April 21, 2009, Nugent applied to the Probate Court for the approval of the creation and funding of the Josephine Smoron Revocable Trust and the Josephine Smoron Irrevocable Trust (the “Trusts”).   On May 12, 2009, the Probate Court had a hearing on Nugent's application.   The plaintiff did not receive notice of the hearing.   At the time, he was a named beneficiary under Ms. Smoron's will.

The Probate Court (Meccariello, J.) approved Nugent's application either at or following the May 12, 2009 hearing, and thereby authorized the creation and funding of the two trusts.   In doing so, the court heard no testimony and failed to consider Ms. Smoron's existing estate plan.   On May 14, 2009, Nugent established and funded the Trusts by quitclaiming Ms. Smoron's real property to the Josephine Smoron Irrevocable Trust, and by depositing $218,826.56 in the Josephine Smoron Revocable Trust.   Pursuant to the terms of the Trusts, upon Ms. Smoron's death, the proceeds of the Trusts would be distributed to three churches, with no provision for the plaintiff.   Ms. Smoron died on June 20, 2009.

After learning of the court's May 12, 2009 order, the plaintiff, on July, 15, 2009 moved the Probate Court to reconsider, modify or revoke the May 12, 2009 order.   On February 5, 2010, after conducting three days of hearings in the summer and fall of 2009, the Probate Court (Meccariello, J.) granted the request for reconsideration, and ordered a new hearing on Nugent's April 21, 2009 application, primarily based on its conclusion that notice was not provided to all interested parties, including the plaintiff.

Thereafter, on July 20, 2010, the Probate Court (Clebowicz, J.) issued a Memorandum of Decision in which it concluded that the court had no jurisdiction to consider the plaintiff's motion for reconsideration, modification or revocation that had been filed a year earlier.   The court, relying on General Statutes § 45a–128(e), concluded that once Nugent transferred the property into the Trusts, the court lacked the statutory authority to entertain a motion to reconsider.   The plaintiff then filed this appeal.

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).   The issue of standing implicates the court's subject matter jurisdiction, and is therefore properly raised in a motion to dismiss.  St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003).  “Standing is the legal right to set judicial machinery in motion.   One cannot rightfully invoke the jurisdiction of the court unless [one] has ․ some real interest in the cause of action.”  (Internal quotation marks omitted.)  Cardi Materials Corp. v. Connecticut Landscaping Bruzzi Corp., 77 Conn.App. 578, 581, 823 A.2d 1271 (2003).  “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.”  (Internal quotation marks omitted.)   The St. Paul Travelers Companies, Inc. v. Kuehl, 299 Conn. 800, 808, 12 A.3d 852 (2011).  “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.)  Gold v. Rowland, 296 Conn. 186, 200–01, 994 A.2d 106 (2010).

IV. DISCUSSION

A. Standing

The defendant first argues that the plaintiff's appeal must be dismissed because the plaintiff lacks standing.   In particular, the defendant argues that, as a “mere prospective heir” under Ms. Smoron's will, the plaintiff lacks a sufficient legal interest to challenge the rulings of the Probate Court.   This argument is without merit.

The defendant relies primarily on Maloney v. Taplin, 154 Conn. 247, 224 A.2d 731 (1966).   In Maloney, the plaintiff (a nephew and former ward) challenged the appointment of a conservator of an individual's property as to which he claimed to be a prospective heir.   The Court held that the plaintiff lacked standing because “[t]he mere possibility of future inheritance cannot support an appeal by one who is not otherwise directly aggrieved ․ The allowance of such appeals, which would invite actions based on speculation rather than on actual facts, would be directly contrary to the principle that an appellant must have a real interest in the matter in controversy.”   (Citations omitted.)  Id., 250–251.

The facts here are much different.   Here, the plaintiff alleges that he is a beneficiary of Ms. Smoron's will.   Thus, his claim is hardly speculative.   It is, instead, based on a provable fact.

Furthermore, the statutes relating to probate matters specifically recognize that someone standing in the plaintiff's shoes has an interest in these types of proceedings.  General Statutes § 45a–655(e), the statute under which the Probate Court issued its May 12, 2009 order, specifically provides that before authorizing a conservator to transfer his conserved person's property, the Probate Court must hold a hearing and provide notice to “all parties who may have an interest” in the estate.   The statute further provides that the Probate Court “should also consider the provisions of an existing estate plan, if any.”   As a named beneficiary under Ms. Smoron's will at the time of the May 12, 2009 order, the plaintiff certainly had an interest in ensuring that the Probate Court considered that will as part of Ms. Smoron's existing estate plan.   There is no question that the plaintiff qualifies as a person who may have an interest in the defendant's application to the Probate Court.

There is also little question that as a named beneficiary under the will, the plaintiff is aggrieved by the May 12, 2009 order, if it is permitted to stand.   Pursuant to that order, the defendant not only placed Ms. Smoron's assets in the Trusts, he designated three churches as beneficiaries of the Trusts upon Ms. Smoron's death.   This designation had the effect of disinheriting the plaintiff and making any provision for him in Ms. Smoron's will a nullity.   These facts clearly establish that the plaintiff is a proper party to invoke the jurisdiction of the court.

B. Timeliness of the Appeal

The defendant's argument is very straightforward.  General Statutes § 45a–187(a) provides:  “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 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.”   Because the plaintiff had not received notice of the May 12, 2009 hearing, he had twelve months to appeal from the ruling issued that day.   Thus, any appeal from that ruling had to be filed by May 12, 2010.   The appeal was not filed until August 12, 2010.   It is therefore late and must be dismissed.

The plaintiff argues that the defendant's claim is based on two faulty assumptions:  1) that what transpired in the Probate Court between May 12, 2009 and August 12, 2010 is irrelevant;  and 2) that Judge Clebowicz's conclusion in the July 20, 2010 order that the Probate Court lacked the authority to reconsider the May 12, 2009 decision is correct.   Because the court agrees with the plaintiff's first argument, it need not reach the second.

Assuming that Judge Clebowicz's decision of July 20, 2010 is correct, the plaintiff's failure to file an appeal on or before May 12, 2010 was a direct result of the actions of the Probate Court.   Initially, the Probate Court went forward with the hearing on May 12, 2009 without providing any notice to the plaintiff or giving any consideration to Ms. Smoron's existing estate plan.   When the plaintiff timely filed his July 15, 2009 motion for reconsideration with the Probate Court, the court never suggested that it could not consider the motion because the defendant had transferred Ms. Smoron's property to the Trusts on May 14, 2009.   Instead, the court scheduled a series of hearings throughout the summer and fall of 2009, the last of which occurred on October 1, 2009.   Then, on February 5, 2010, the court granted the plaintiff's motion and ordered that a new hearing be scheduled on the defendant's April 21, 2009 application.   At that point, there was absolutely no reason for the plaintiff to think about appealing the May 12, 2009 decision, which had just been set aside.   Instead, the plaintiff surely believed that he would finally be given the opportunity that he had not had nine months earlier to be heard on the defendant's application.

That did not happen though, because five months later, after the plaintiff's one year for taking an appeal had expired, the court ruled that it had no authority to order the hearing that it had ordered in February.   It would not reconsider its May 12, 2009 decision.   Had the Probate Court informed the plaintiff of this conclusion at any time between when the plaintiff first filed his motion for reconsideration in July 2009 and May 12, 2010, the plaintiff could have easily complied with the requirement of General Statutes § 45a–187(a).   And, once he learned that the Probate Court had reversed field on him, he immediately took his appeal.

“The plaintiff's statutory right of appeal [can]not be defeated by the mistake of the Probate Court.”  Kron v. Thelen, 178 Conn. 189, 196, 423 A.2d 857 (1979).   To the extent that the Probate Court was mistaken in continuing to consider the plaintiff's motion for reconsideration, and ultimately granting that motion and ordering a new hearing, the plaintiff should not be prejudiced by the court's mistake.   Consequently, to the extent Judge Clebowicz is correct in his analysis of the Probate Court's authority, the plaintiff had been misled for almost a year by Judge Mecciarello's mistaken handling of the matter.   As the court in Kron held, “[h]ad the correct information been given, the plaintiff could have taken a timely appeal but was prevented from so doing by the misleading information given by the Probate Court.   When the plaintiff did finally learn of the decision, [he] proceeded to perfect [his] appeal.”   Id., 197.   It is true that the plaintiff was not “prevented” from timely appealing in such a way that he could not have filed an appeal while the motion for reconsideration was pending.   However, given that the Probate Court scheduled three hearings on the motion and ultimately granted it more than three months before the appeal deadline, the plaintiff's actions in not taking an appeal were both understandable and reasonable.¹

Consistent with this reasoning, other courts have concluded that the appeal period from a probate court's ruling does not begin to run until the court has finally ruled on a motion for reconsideration.   State v. Vecchito, Superior Court, judicial district of Waterbury at Waterbury, Docket No. FA 95 0127688, (November 7, 1995, Dranginis, J.);   Frank v. Frank, Superior Court, judicial district of Middlesex, Docket No. 66226, (December 22, 1992, Walsh, J.).   The defendant argues that those cases are distinguishable because the motion for reconsideration in each case was permitted by statute, whereas, here, the plaintiff's was not.   The court disagrees.   Whatever the Probate Court's grounds were for ultimately denying the motion for reconsideration, all of the information it provided to the plaintiff from July 2009 until June 2010, particularly its ruling on February 5, 2010, led the plaintiff to believe that the court was giving full consideration to his argument, making an appeal completely unnecessary.   It was only after the court finally ruled on the motion for reconsideration on June 20, 2010, that the plaintiff had notice that an appeal was necessary.   In this way, this case is no different than Vecchito and Frank.   Consequently, the plaintiff's appeal was not untimely.   Because, the court has reached this conclusion, it need not consider the plaintiff's second argument that Judge Clebowicz's June 20, 2010 decision was wrong.²

V. CONCLUSION

For all of the foregoing reasons, the defendant's Motion to Dismiss is DENIED.

Bright, J.

FOOTNOTES

FN1. The defendant's reliance on Porto v. Sullivan, 119 Conn.App. 360, 987 A.2d 1092 (2010), is misplaced.   The Appellate Court distinguished the facts of that case from Kron, because in Kron “the actions of the Probate Court caused an untimely appeal ․ The present case, therefore, is distinguishable from Kron ... as there was no affirmative act by the Probate Court that directly caused the plaintiff to file an untimely appeal from the sale of the real estate.”  Id., 367.   That is certainly not the case here.   As noted above, the direct acts of the Probate Court directly caused the plaintiff to file his appeal after May 12, 2010.   In addition, in Porto, the plaintiff did not file his appeal until three years after the property was transferred.   There has been no such delay here.   The plaintiff filed his motion for reconsideration promptly upon learning of the May 12, 2009 order, and filed this appeal less than forty-five days after the June 20, 2010 order..  FN1. The defendant's reliance on Porto v. Sullivan, 119 Conn.App. 360, 987 A.2d 1092 (2010), is misplaced.   The Appellate Court distinguished the facts of that case from Kron, because in Kron “the actions of the Probate Court caused an untimely appeal ․ The present case, therefore, is distinguishable from Kron ... as there was no affirmative act by the Probate Court that directly caused the plaintiff to file an untimely appeal from the sale of the real estate.”  Id., 367.   That is certainly not the case here.   As noted above, the direct acts of the Probate Court directly caused the plaintiff to file his appeal after May 12, 2010.   In addition, in Porto, the plaintiff did not file his appeal until three years after the property was transferred.   There has been no such delay here.   The plaintiff filed his motion for reconsideration promptly upon learning of the May 12, 2009 order, and filed this appeal less than forty-five days after the June 20, 2010 order.

FN2. If Judge Clebowicz was wrong, then the Probate Court had the legal authority to reconsider its May 12, 2009 decision.   Thus, regardless of whether Judge Clebowicz's analysis was correct, the plaintiff is entitled to pursue this appeal and have the May 12, 2009 decision reviewed on its merits..  FN2. If Judge Clebowicz was wrong, then the Probate Court had the legal authority to reconsider its May 12, 2009 decision.   Thus, regardless of whether Judge Clebowicz's analysis was correct, the plaintiff is entitled to pursue this appeal and have the May 12, 2009 decision reviewed on its merits.

Bright, William H., J.