Michael Banziruk v. Harry Banziruk et al. (2012)

RULING ON THE DEFENDANT'S MOTION TO DISMISS (# 126)

The defendant, Harry A. Banziruk,¹ moves to dismiss the complaint brought by the plaintiff, Michael Banziruk.   The plaintiff objects to the motion, claiming that the motion is without a basis in the law and, also, that it is barred by the doctrine of the law of the case.

This matter came before the court and was heard on June 4, 2012.   The motion to dismiss is denied.

I

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff filed a complaint on June 4, 2010, alleging that he is the executor of his mother's estate.   He claims that he was appointed executor by the probate court on December 16, 2003, his mother having died on September 12, 2003.   He alleges that on December 16, 2003, he presented his then co-executor, the defendant, with a claim against the estate.   He claims that in April 2004, he presented the same claim to an estate beneficiary, Nicholas Banziruk, who is also a defendant in this case.   Finally, he alleges that he filed the same claim with the probate court on August 10, 2009.   In each case, he alleges, the claim was in the amount of $245,880.

On May 20, 2010, the probate court dismissed the plaintiff's claim as untimely pursuant to General Statutes § 45a–375(c).  This appeal followed the probate court's decision.   On appeal to this court, the plaintiff argues, inter alia, that his claim was not untimely, and, therefore, that his claim was wrongly denied by the probate court.

On November 4, 2010, the defendant moved for summary judgment, arguing that the plaintiff's action was, in fact, untimely in that it was not brought within the statute of limitations as set forth in General Statutes § 45a–375(c).  The defendant accompanied that motion with an affidavit signed by the defendant.   The affidavit asserted, inter alia, that the plaintiff did not present any claim to the defendant or anyone known to him prior to August 18, 2009.   The plaintiff responded by arguing, inter alia, that there is a factual issue with regard to the date on which his claim was presented to the fiduciaries.   On March 23, 2011, this court denied the defendant's motion for summary judgment, finding that genuine issues of material fact exist with regard to whether the plaintiff presented his claim to the defendant within the statute of limitations period set forth in General Statutes § 45a–375(c).²

On May 3, 2012, the defendant moved to dismiss the plaintiff's appeal and supported that motion with a memorandum of law (# # 126, 127).   On May 30, 2012, the plaintiff opposed the motion to dismiss, supporting his objection with a memorandum of law and his affidavit (# # 128, 129, 130).

II

DEFENDANT'S POSITION

The defendant moves to dismiss the complaint on the basis that the plaintiff's appeal is time-barred by both General Statutes § 45a–375(c) and General Statutes § 45a–375(d).  He argues that the only viable claim presented by the plaintiff was the claim filed on August 18, 2009, more than six years after the opening of the estate.

The defendant supports his argument, in part, by relying on the plaintiff's response to a request for admission filed on January 9, 2012.   That request for admission called upon the plaintiff to admit “to the genuineness of the attached document marked Exhibit A, purported to be a copy of the original notice of claim presented to Harry Banziruk as Executor of the Estate of Mary K. Banziruk aka Mary Banziruk as the claim of Michael Banziruk in the Estate of Mary K. Banziruk aka Mary Banziruk, Torrington Probate Court, Torrington, CT, August 18, 2009.”   The plaintiff responded, “admitted.”

III

PLAINTIFF'S POSITION

The plaintiff opposes the motion to dismiss.   He argues that his claim was presented to the defendant, his co-executor, in a timely manner.   Second, he relies on this court's previous ruling, denying the defendant's motion for summary judgment.   The plaintiff contends that the defendant's motion for summary judgment raised the same argument that is now being made in the defendant's motion to dismiss.   Consequently, the plaintiff argues, the doctrine of law of the case must control.   Third, the plaintiff argues that the time limitation with regard to the underlying claim does not bar a timely-filed appeal of a probate court decision to the Superior Court.

IV

DISCUSSION

A motion to dismiss “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.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).   When a motion to dismiss raises a jurisdictional question, and “the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue ․” (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

“[I]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time ․ 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 ․ The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal.”  (Internal quotation marks omitted.)  Fairchild Heights Residents Ass'n, Inc. v. Fairchild Heights, Inc., 131 Conn.App. 567, 572, 27 A.3d 467 (2011), cert. granted, 303 Conn. 928, 36 A.3d 242 (2012).

“A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  Upson v. State, 190 Conn. 622, 624, 461 A.2d 991 (1983).   Consequently, when considering a motion to dismiss, “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.)  State v. Marsh & McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315 (2008).  “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.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 214, 982 A.2d 1053 (2009).

A

General Statutes § 45a–375(c)

The defendant's motion to dismiss, based upon General Statutes § 45a–375(c), fails for multiple reasons.   First, the defendant misconstrues the import of the plaintiff's January 9, 2012 response to the defendant's request for admission.   The plaintiff did indeed admit “to the genuineness of the attached document marked Exhibit A, purported to be a copy of the original notice of claim presented to Harry Banziruk as Executor of the Estate of Mary K. Banziruk aka Mary Banziruk as the claim of Michael Banziruk in the Estate of Mary K. Banziruk aka Mary Banziruk, Torrington Probate Court, Torrington, CT, August 18, 2009.”   To the extent the defendant is using the latter response to argue ³ that the plaintiff did not make a claim until 2009, he reads too much into the plaintiff's response to the request for admission.   The court understands the latter admission to be no more than an admission that the document reflecting the plaintiff's August 18, 2009 claim was a “[genuine] ․ copy of the original notice of claim ․ as the [plaintiff's] claim ․ in the Estate of Mary K. Banziruk ․”

The plaintiff submitted an affidavit, dated May 30, 2012, in which he contends that he properly presented a claim with his then-co-executor in 2003, and that he did the same thing with an estate beneficiary in April 2004.   He argues that making such claims brings him within the provisions of General Statutes § 45a–375 in that General Statutes § 45a–375(b) states in relevant part that “[t]he running of any limitation period applicable to the claim of any person, shall, provided such claim was presented to the fiduciary prior to expiration of the applicable period of limitations,⁴ be suspended from the time of presentation of such claim until such claim has been rejected, in whole or in part ․”

The defendant relies upon General Statutes § 45a–375(c) for the proposition that the plaintiff's claim is untimely.   The defendant fails to note that General Statutes § 45a–375(c) contains a specific exception for claims brought under General Statutes § 45a–375(b), the section on which the plaintiff now relies.   Construing the facts in a manner most favorable to the plaintiff and indulging every presumption in favor of jurisdiction, as this court must, it is not possible to conclude that the plaintiff's complaint should be dismissed as untimely under General Statutes § 45a–375(c).

A second basis for denying the defendant's motion to dismiss is found in the court's decision of March 23, 2011.   In that decision, the court denied the defendant's motion for summary judgment in which he claimed, as he does here, that the plaintiff's claim is barred by General Statutes § 45a–375(c).  Although the defendant now advances his claim as a motion to dismiss for lack of subject matter jurisdiction, he is, in fact, making the same claim that failed when he moved for summary judgment.   The defendant must, therefore, establish that his current claim is not now subject to the law of the case doctrine.

The law of the case doctrine provides that “[w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance ․ A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision ․ [O]ne judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law.”  (Internal quotation marks omitted.)   General Electric Capital Corp. of Puerto Rico v. Rizvi, 113 Conn.App. 673, 681, 971 A.2d 41 (2009).   Such rulings are not to be lightly changed.   McCarthy v. McCarthy, 55 Conn.App. 326, 332, 752 A.2d 1093 (1999), cert. denied, 252 Conn. 923, 752 A.2d 1081 (2000).   The doctrine is a flexible one, but the reasons behind it are compelling.  “A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge.”  (Internal quotation marks omitted.)  Bowman v. Jack's Auto Sales, 54 Conn.App. 289, 293, 734 A.2d 1036 (1999).

“The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked.”  Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982).   “New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored ․ But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause.”  (Emphasis added;  internal quotation marks omitted.)  Id.

The defendant has not addressed the law of the case doctrine, and, thus, fails to give this court any basis on which to decide his motion to dismiss, based on General Statutes § 45a–375(c), any differently than the way it decided his previous motion for summary judgment.

B

General Statutes § 45a–375(d)

The defendant raises a second argument in support of his motion to dismiss.   He argues that General Statutes § 45a–375(d) bars the plaintiff's claim.   This claim was not presented to the court when the defendant filed his motion for summary judgment.  General Statutes § 45a–375(d) provides in relevant part that “[w]ith respect to any claim arising after the death of a decedent, no claim may be presented and no suit on such claim may be commenced against the fiduciary, the estate of the decedent, or any ․ beneficiary of the estate but within (1) two years from the date the claim arose or (2) the date upon which the statute of limitations applicable to such claim ․ would have otherwise expired, whichever shall first occur.”

The plaintiff's affidavit, offered in support of his opposition to the motion to dismiss, asserts that his claim is derived from his maintenance of the decedent's premises, including the payment of property taxes, utilities, maintenance and repairs.   He also alleges that his claim is for repayment of expenses he incurred in caring for Harry N. Banziruk, at the request of the decedent, Mary Banziruk.   The plaintiff contends that these claims all arose prior to the decedent's death, and argues that General Statutes § 45a–375(d) only applies to claims that arise after a decedent's death.

When a claim is presented to a fiduciary, and the plaintiff contends that he did so within three months of the decedent's death, the fiduciary has ninety days to act on the claim.  General Statutes § 45a–360(c).  There is no claim, by either party, that any fiduciary acted on any claim that was, or may have been, submitted in 2003 or 2004.   Therefore, construing the facts in a manner most favorable to the plaintiff and indulging every presumption in favor of jurisdiction, as this court must, it is not possible to conclude that the plaintiff's claim is untimely pursuant to General Statutes § 45a–375(d).

For all of the foregoing reasons, the defendant's motion to dismiss is denied.   So ordered.

BY THE COURT,

John A. Danaher III

FOOTNOTES

FN1. Harry A. Banziruk's co-defendant, Nicholas H. Banziruk, did not join in Harry A. Banziruk's motion to dismiss.   All references to the “defendant” in this ruling are references to Harry A. Banziruk, only..  FN1. Harry A. Banziruk's co-defendant, Nicholas H. Banziruk, did not join in Harry A. Banziruk's motion to dismiss.   All references to the “defendant” in this ruling are references to Harry A. Banziruk, only.

FN2. In view of the fact that the court's ruling on this issue mandated the denial of the motion for summary judgment, the court found it unnecessary to reach the plaintiff's additional arguments that:  1) General Statutes § 45a–367 governs claims submitted by a fiduciary and 2) summary judgment is never available in a probate court appeal..  FN2. In view of the fact that the court's ruling on this issue mandated the denial of the motion for summary judgment, the court found it unnecessary to reach the plaintiff's additional arguments that:  1) General Statutes § 45a–367 governs claims submitted by a fiduciary and 2) summary judgment is never available in a probate court appeal.

FN3. The defendant's brief makes no reference to the plaintiff's response to the defendant's request for admission.   The defendant only referred to the plaintiff's response to the request for admission in the course of the defendant's short calendar argument..  FN3. The defendant's brief makes no reference to the plaintiff's response to the defendant's request for admission.   The defendant only referred to the plaintiff's response to the request for admission in the course of the defendant's short calendar argument.

FN4. The defendant does not contend that the plaintiff's claim fails under General Statutes § 45a–375(b).  Indeed, the defendant failed to address the application of Section 45a–375(b) in his motion to dismiss..  FN4. The defendant does not contend that the plaintiff's claim fails under General Statutes § 45a–375(b).  Indeed, the defendant failed to address the application of Section 45a–375(b) in his motion to dismiss.

Danaher, John A., J.