Patricia Sherman v. Kathleen J. Kowalyshyn et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 167)

In this action the plaintiff, Patricia Sherman, appeals from an order of the Probate Court suspending her plenary guardianship over her daughter, Deborah Banks.   The plaintiff moves for summary judgment claiming that the decree of the Probate Court should be reversed and vacated because the undisputed facts establish that the Probate Court did not comply with the provisions of General Statutes § 45a–675.   That statute provides:  “The respondent shall be present at any hearing for his guardianship, provided the court may exclude him from such portions of the hearing at which testimony is given which the court determines would be seriously detrimental to his emotional or mental condition.   Any person having knowledge that the respondent is or will be medicated at that time, shall inform the court of such fact and to the extent he knows the same, shall inform the court of the common effects of such medication.”

All parties submitted memoranda in support of their positions and oral argument on the motion was heard by the court on January 28, 2013.

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.   In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact ․ but rather to determine whether any such issues exist ․ The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ Once the moving party has met its burden [of production] ․ the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ [I]t [is] incumbent [on] the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists ․ The presence ․ of an alleged adverse claim is not sufficient to defeat a motion for summary judgment.”  (Citation and internal quotation marks omitted.)   The Episcopal Church v. Gauss, 302 Conn. 408, 421–2 (2011).

The defendants, the Department of Developmental Services and the Office of Protection and Advocacy for Persons with Disabilities, make essentially two arguments in opposition to the motion:  1) summary judgment is not allowed in an appeal from probate;  and 2) genuine issues of material fact exist as to whether the plaintiff's guardianship should have been suspended.

“An appeal from a Probate Court to the Superior Court is not an ordinary civil action ․ When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate ․ In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common law jurisdiction, but of a Probate Court ․ When, as here, no record was made of the Probate Court proceedings, the absence of a record requires a trial de novo.”   (Internal quotation marks and citations omitted.)  Silverstein v. Laschever, 113 Conn.App. 404, 409 (2009).

The defendants cite

The defendants also argue that the “pleadings” referenced in Practice Book § 10–76 are those set forth in Practice Book § 10–6, which does not include a motion for summary judgment.   A plain reading of those provisions makes it clear that Practice Book § 10–76 does not allow for the filing of a motion for summary judgment in an appeal from probate.   Therefore the plaintiff's motion for summary judgment must be denied on this basis alone.

Even considering the second ground of the defendants' objection, the motion must still be denied.   The issue on this appeal is not whether the Probate Court erred in entering its June 3, 2010 decision without the requisite notice to the respondent, but whether the Application for Removal of Plenary Guardian and Standby Plenary Guardian of the Person dated May 12, 2010 should be granted.  “The function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo ․ Thereafter, upon consideration of all evidence presented on the appeal which would have been admissible in the probate court, the superior court should exercise the same power of judgment which the probate court possessed and decide the appeal as an original proposition unfettered by, and ignoring, the result reached in the probate court.”  (Internal quotation marks and citations omitted.)  Kerin v. Stangle, 209 Conn. 260, 264 (1988).   The court agrees with the defendants that the plaintiff has failed to demonstrate that there are no issues of material fact as to what action on the application this court should take.

For the foregoing reasons the Motion for Summary Judgment is denied.

Jane S. Scholl, J.

Scholl, Jane S., J.