Angelo Caputo, Conservator of the Estate of Mary T. Caputo v. Probate Court of Trumbull (2012)

MEMORANDUM OF DECISION

This is a motion to dismiss an appeal from the probate court of Trumbull.

By way of background the plaintiff, Angelo Caputo, was appointed as conservator of the estate of his mother, Mary T. Caputo, on February 18, 2011 as a result of her being deemed incompetent to manage her own affairs.

On September 10, 2010, Mary Caputo had transferred her ownership by quitclaim deed to her daughter Theresa Caputo.

On August 26, 2011, the plaintiff/appellant filed an application to quiet title in the probate court for the district of Trumbull.

On or about November 2, 2011, the probate court returned the application to the plaintiff with an undated note attached to the envelope which stated:

“Atty. Knott, Per our phone conversation, I am returning this application as the probate court does not have jurisdiction.   Thank you.   Gail.”

The petition was never docketed nor was any notice of hearing or hearing held on the merits.

The defendants have moved to dismiss the appeal on the basis that the probate court declined jurisdiction as was within their discretion and, as such jurisdiction lies in the superior court.   The court agrees.

“General Statutes § 45a–98 provides, in relevant part:  ‘(a) Courts of probate in their respective districts shall have the power to ․ (3) except as provided in section 45a–98a or as limited by an applicable statute of limitations, determine title or rights of possession and use in and to any real, tangible or intangible property that constitutes, or may constitute, all or part of any trust, any decedent's estate, or any estate under control of a guardian or conservator, which trust or estate is otherwise subject to the jurisdiction of the Probate Court, including the rights and obligations of any beneficiary of the trust or estate and including the rights and obligations of any joint tenant with respect to survivorship property;  ․ (b) The jurisdiction of courts of probate to determine title or rights or to construe instruments ․ pursuant to subsection (a) of this section is concurrent with the jurisdiction of the Superior Court and does not affect the power of the Superior Court as a court of general jurisdiction.”

“Section 45a–98a provides (a) the probate court shall have jurisdiction under Subdivision 3, 4, or 5 of Subsection (a) of 45a–98a only if (1) the matter in dispute is not pending in another court of competent jurisdiction and (2) the probate court does not decline jurisdiction.   Before the initial hearing on the merits of a matter in dispute in which jurisdiction is based on Subsection (3), (4) or (5) of 45a–98a, the probate court may decline to take jurisdiction of the matter.”  (Emphasis added).

It is the decision of this court that in fact the probate court did decline to take jurisdiction of the matter and the proper jurisdiction lies in the superior court.

It should be noted that the notification to the plaintiff was through the clerk and not the probate judge so the entire participation of the probate court was the mailing of a notice to the plaintiff by the clerk and as was said the file itself was never actually filed, docketed, scheduled for a hearing or notices sent or any ruling on the part of the judge himself.

The motion to dismiss is granted.

GILARDI, J.T.R.

Gilardi, Richard P., J.T.R.