Burlington v. Robert McCallum et al. (2013)

MOTION TO DISMISS/MOTION FOR SUMMARY JUDGMENT # 110.00

I

PROCEDURAL HISTORY

This action arises out of allegations regarding the improper withdrawal of funds from an account in breach of a performance bond agreement between the plaintiff, the town of Burlington, and the defendant, Janet McCallum as executrix of the estate of Robert McCallum (“the estate”).¹  Specifically, it is alleged that in August 2010, the estate entered into a contract with the town whereby it agreed to maintain a certain amount of money as a part of a performance bond agreement, but that a majority of this money was improperly withdrawn on or about May 26, 2010.   On January 11, 2012, the plaintiff filed an eight-count complaint alleging:  breach of contract, breach of the covenant of good faith and fair dealing, fraud, negligent misrepresentation, violation of the Connecticut Unfair Trade Practice Act (“CUTPA”), civil conspiracy, conversion, and statutory theft against the estate.

On March 21, 2013, the defendant filed the present motion to dismiss or, in the alternative, motion for summary judgment.²  On May 1, 2013, the plaintiff filed its objection thereto along with a memorandum of law in support.   On May 3, 2013, the defendant filed its reply.   On May 6, 2013, the court heard oral argument and ordered supplemental briefs.   On May 20, 2013, the plaintiff filed its supplemental brief.   On May 31, 2013, the defendant filed its supplemental brief.   On June 5, 2013, the plaintiff filed another supplemental brief that was unauthorized.   The defendant filed a response to the unauthorized brief on June 6, 2013.   In its discretion, the court chooses to consider both of the unauthorized briefs.

II

DISCUSSION

“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.”  (Internal quotation marks omitted.)  Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2012).

A

The Summons and Complaint

The defendant argues, first, that the estate is not a legal entity and therefore cannot be sued, and that the executrix of the estate, Janet McCallum, is not properly named as a defendant.   Accordingly, the defendant contends that the court should dismiss the action.   To illustrate, the summons names as the first defendant, “[t]he estate of Robert McCallum, c/o Janet McCallum” while the complaint names as one of the defendants, “Janet McCallum, fiduciary of the estate of Robert McCallum.”   The defendant argues that naming Janet McCallum as the executrix of the estate in the complaint is insufficient to bring suit because the summons merely contains the “c/o” reference to Janet McCallum.   In response the plaintiff maintains that the plainly erroneous citation in the summons does not implicate the jurisdiction of the court because the defendant had sufficient notice via the complaint.

General Statutes § 52–123 provides:  “No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.”

Reading the summons and complaint together, there can be no real doubt that the defendant had sufficient notice of the present action.   The court will not dismiss the action on this ground and finds that the defendant is Janet McCallum as executrix of the estate of Robert McCallum.

B

Standing

Next, the defendant argues that the plaintiff lacks standing to sue either the estate or its executrix, because, prior to filing suit, the plaintiff failed to comply with the requirement of General Statutes § 45a–358(a).³  The defendant contends that since General Statutes §§ 45a–358(c) ⁴ and 45a–363(a) ⁵ “declare that the plaintiff does not have the legal right to set the judicial machinery in motion ․ [that] the [p]laintiff lacks standing to bring this action against either the [e]state of Robert McCallum or its fiduciary.”  (Def.'s Memo. 3/21/13, p. 17.)

The issue of standing involves the subject matter jurisdiction of the court.   “Standing is the legal right to set judicial machinery in motion.   One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy ․ When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue ․ Standing requires no more than a colorable claim of injury;  a [party] ordinarily establishes ․ standing by allegations of injury.   Similarly, standing exists to attempt to vindicate arguably protected interests.”  (Internal quotation marks omitted.)  St. Germain v. LaBrie, 108 Conn.App. 587, 591, 949 A.2d 518 (2008).  “Standing ․ is not a technical rule intended to keep aggrieved parties out of court;  nor is it a test of substantive rights.   Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.”   (Internal quotation marks omitted.)  Harris v. Zoning Commission, 259 Conn. 402, 409–10, 788 A.2d 1239 (2002).

In contrast, “[t]o determine whether a party has standing to make a claim under a statute, a court must determine the interests and the parties that the statute was designed to protect ․ Essentially the standing question in such cases is whether the ․ statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief ․ The plaintiff must be within the zone of interests protected by the statute.”  (Emphasis added, internal quotation marks omitted.)  Citizens Against Overhead Power Line Construction v. Connecticut Siting Council, 139 Conn.App. 565, 584, 57 A.3d 765 (2012), cert. granted in part, 308 Conn. 906, 61 A.3d 1098 (2013).

In the present case, the plaintiff has demonstrated a colorable claim of injury via its allegation that the defendant improperly withdrew funds from an account in breach of an agreement between the parties.   The plaintiff's various allegations, e.g., breach of contract, breach of the covenant of good faith and fair dealing, fraud, negligent misrepresentation and civil conspiracy, are not statutory causes of action.   Consequently, whether the plaintiff complied with the statutory notice provisions of § 45a–358(a) and related sections is of no moment for purposes of this standing analysis.

C

Statutory Conditions Precedent

Last, the defendant argues that even if the plaintiff's failure to present its claims to the fiduciary is not regarded as depriving the plaintiff of standing, the failure to satisfy the statutory conditions precedent to filing suit nevertheless deprives the court of jurisdiction.   In response, the plaintiff contends that a fiduciary has the right to adjudicate a claim in Superior Court and, therefore, may waive the notice of claims procedure of the probate statutes by filing an answer joining the claim in the Superior Court.   In contrast, if the cause of action itself existed only under statutory authority, then a failure to comply with the statutory terms would be fatal.   Furthermore, the plaintiff argues that the probate statutes were intended to give the administrator notice of claims so that some claims could be acknowledged and others denied.   Furthermore, “[t]he administrator received actual notice by way of the complaint.   It was her prerogative to join the claim and have the question adjudicated by the court or to promptly move to dismiss the case based on lack of personal jurisdiction over her due to lack of service of a separate notice of claim in the same way that a defendant could assert lack of personal jurisdiction based on venue, minimum contacts or failure of service ․ She chose to join this claim and then wait fourteen months to assert that such a separate notice was required.   Since the court does not acquire subject matter jurisdiction over the causes of action asserted in this case via statute and there is no statutory or policy reasons why an administrator is not allowed to adjudicate a contested claim in Superior Court regardless of whether a prior notice of claim was provided, the requirement of a separate notice must be waivable.”  (Pl.'s Memo. 6/5/13, p. 2.)

“[J]urisdiction over the person, jurisdiction over the [subject matter], and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court.”  (Internal quotation marks omitted.)  Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011).  “[A]lthough related, the court's authority to act pursuant to a statute is different from its subject matter jurisdiction.   The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute ․ [T]he distinction between challenges to the trial court's subject matter jurisdiction and challenges to the exercise of its statutory authority is not always clear.”  (Citation omitted;  internal quotation marks omitted.)   In re Jose B., 303 Conn. 569, 573–74, 34 A.3d 975 (2012).  “[T]here is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action, and therein lies the distinction between the motion to dismiss and the motion to strike.”  (Internal quotation marks omitted.)   Id., 577 n.3. “[T]he failure to establish an essential fact for obtaining relief under that statute does not implicate the trial court's subject matter jurisdiction, but rather, implicates its statutory authority.”   Id., 583 n.9.

“[A] party who holds a claim against an estate must present that claim first to the fiduciary.   See General Statutes § 45a–358(a) (‘[e]very claim shall be presented to the fiduciary in writing’).   If the claimant holds an unmatured, contingent or unliquidated claim, the claimant also may petition the Probate Court to reserve estate assets as security for the claim, should it eventually be allowed.   See General Statutes § 45a–359(a) ⁶ ․ [I]f the fiduciary rejects the claim after being presented with it, the claimant must either petition the Probate Court to review the rejection or file a complaint in the Superior Court.   See General Statutes §§ 45a–363(b) ⁷ and 45a–364(a).⁸  Each of these actions must occur within a specified time period.   See General Statutes §§ 45a–363(b) and 45a–364(a).   Significantly, if the claimant elects to proceed in Probate Court, or with a commission appointed by the Probate Court, the claimant is subject to the provisions of § 45a–364 and will not be able to present the claim to a jury.   Thus, a claimant who wishes to have a jury trial before the Superior Court must follow § 45a–363(b) by bringing an action on the claim within 120 days following its rejection by the fiduciary.”  Keller v. Beckenstein, 305 Conn. 523, 533–34, 46 A.3d 102 (2012).

“Having delineated the various means that claimants may use to resolve a claim, we now address the types of claims that are covered by this statutory scheme.  General Statutes § 45a–353(d) ⁹ provides a specific, yet broad, definition of the term ‘claim’ as used in foregoing statutes, including § 45a–363 ․ It is therefore clear that the statutory scheme encompasses the situation in which a party may hold an unmatured, unliquidated or contingent claim against a decedent's estate that has been rejected by the fiduciary.   The claimant then may bring an action to recover on the claim in the Superior Court ․ In simpler terms, because § 45a–363 provides that a claimant may bring an action on any type of rejected claim in the Superior Court, the statute necessarily confers on the Superior Court the jurisdiction to act on any claim filed pursuant to that statute.”  Keller v. Beckenstein, supra, 305 Conn. 534–35.

“The requirement that written claims be submitted to the fiduciary within 150 days of the fiduciary's appointment is intended to permit the fiduciary to assemble the assets of the estate in an orderly manner, identify the creditors and debtors of the estate, distribute the assets in an orderly fashion, and ultimately, pay claims, expenses and taxes in the correct amounts and in the correct order of priority.”   Riendeau v. Grey, Superior Court, judicial district of Litchfield, Docket No. CV 10 6002202 (August 11, 2010, Danaher III, J.) (holding that the “nonclaim” statute, § 45a–358, requires submission of written claims to the fiduciary and bars creditors from enforcing payment of their claims against assets in the hands of a fiduciary in any proceeding in any court unless the “claim is presented in accordance with the provisions of this section”).

In the present case, the plaintiff concedes that it failed to present its claims to the fiduciary as required by § 45a–358 et seq.  (See Pl.'s Memo. 6/5/13, p. 1–2.)   Nevertheless, the plaintiff argues that the defendant waived the notice of claims procedure of the probate statutes by filing an answer joining the claim in the Superior Court.   The plaintiff argues that it was not required to present its claim in light of Genovese v. J.N. Clapp Co., 4 Conn.App. 443, 495 A.2d 1079 (1985).   However, Genovese construed a predecessor statute, General Statutes § 45–205, that stated that any claim “barred by ․ § 45–205” if asserted offensively in an action brought by the claimant against the estate, could be used by the claimant defensively, by way of recoupment, “in an action brought by the estate against the claimant.”   See id., 446.   The present case is not an action brought by the estate against the town of Burlington, and recoupment is not involved in this case.   If anything, Genovese reaffirms that the plaintiff's claim is barred due to its failure to present the claim to the fiduciary.

Finally, regarding waiver, the plaintiff cites no case law in support of its claim that the defendants can waive the statutory requirements of the probate statutes.   Nevertheless, looking to other jurisdictions dealing with similar notice provisions, suits sometimes are allowed to proceed if a plaintiff “can show good cause exists to waive such requirements” and if defendants “cannot affirmatively show that its defense has been prejudiced by lack of required notice.”  Huggins v. Prince George's County, 683 F.3d 525, 538 (4th Cir.2012).   Accordingly, the plaintiff would first have to establish good cause before it becomes the defendant's burden to show prejudice.   However, in the present case, the plaintiff has not presented any facts demonstrating good cause for its failure to meet the notice requirement.   Furthermore, the plaintiff has not articulated any law that demonstrates that it is even within the power of the fiduciary to waive all of the previously discussed requirements concerning presentment and disposition of claims under § 45a–358 et seq.   As a result, the action is ordered dismissed.

III

CONCLUSION

For the foregoing reasons, the defendant's motion to dismiss is granted.

SO ORDERED.

BY THE COURT

PETER EMMETT WIESE, JUDGE

FOOTNOTES

FN1. The estate of Robert McCallum via Janet McCallum as executrix is the only defendant at issue in the present motion although there are a number of other defendants in the underlying action.   Those other defendants are:  GWT Associates, LLC, Adam DeMeusy, Fred Ouelette and Spencer Homes, LLC..  FN1. The estate of Robert McCallum via Janet McCallum as executrix is the only defendant at issue in the present motion although there are a number of other defendants in the underlying action.   Those other defendants are:  GWT Associates, LLC, Adam DeMeusy, Fred Ouelette and Spencer Homes, LLC.

FN2. Because the court is granting the defendant's motion to dismiss, it will not consider the motion for summary judgment..  FN2. Because the court is granting the defendant's motion to dismiss, it will not consider the motion for summary judgment.

FN3. General Statutes § 45a–358(a) states in relevant part:  “Every claim shall be presented to the fiduciary in writing.”.  FN3. General Statutes § 45a–358(a) states in relevant part:  “Every claim shall be presented to the fiduciary in writing.”

FN4. “General Statutes § 45a–358(c) states:  “No creditor shall be entitled to enforce payment of his claim against assets in the hands of a fiduciary in any proceeding in any court unless his claim is presented in accordance with the provisions of this section.”.  FN4. “General Statutes § 45a–358(c) states:  “No creditor shall be entitled to enforce payment of his claim against assets in the hands of a fiduciary in any proceeding in any court unless his claim is presented in accordance with the provisions of this section.”

FN5. General Statutes § 45a–363(a) states:  “No person who has presented a claim shall be entitled to commence suit unless and until such claim has been rejected, in whole or in part, as provided in section 45a–360.”.  FN5. General Statutes § 45a–363(a) states:  “No person who has presented a claim shall be entitled to commence suit unless and until such claim has been rejected, in whole or in part, as provided in section 45a–360.”

FN6. General Statutes § 45a–359(a) states in relevant part:  “If, at the death of any person, there shall be an unmatured, contingent or unliquidated claim or an outstanding bond, note, recognizance or undertaking upon which he was principal, surety, or indemnitor and on which at the time of his death the liability was unmatured, contingent or unliquidated, then the court of probate shall, on the petition of either (1) a claimant who has duly presented his claim or (2) the fiduciary to whom an unmatured, contingent or unliquidated claim has been duly presented, after notice to such persons as the court shall direct, conduct a hearing to determine whether a reserve from the assets of the estate should be established to secure the payment of the unmatured, contingent or unliquidated claim.”.  FN6. General Statutes § 45a–359(a) states in relevant part:  “If, at the death of any person, there shall be an unmatured, contingent or unliquidated claim or an outstanding bond, note, recognizance or undertaking upon which he was principal, surety, or indemnitor and on which at the time of his death the liability was unmatured, contingent or unliquidated, then the court of probate shall, on the petition of either (1) a claimant who has duly presented his claim or (2) the fiduciary to whom an unmatured, contingent or unliquidated claim has been duly presented, after notice to such persons as the court shall direct, conduct a hearing to determine whether a reserve from the assets of the estate should be established to secure the payment of the unmatured, contingent or unliquidated claim.”

FN7. General Statutes § 45a–363(b) states in relevant part:  “Unless a person whose claim has been rejected (1) commences suit within one hundred twenty days from the date of the rejection of his claim, in whole or in part, or (2) files a timely application pursuant to section 45a–364, he shall be barred from asserting or recovering on such claim from the fiduciary, the estate of the decedent or any creditor or beneficiary of the estate, except for such part as has not been rejected.”.  FN7. General Statutes § 45a–363(b) states in relevant part:  “Unless a person whose claim has been rejected (1) commences suit within one hundred twenty days from the date of the rejection of his claim, in whole or in part, or (2) files a timely application pursuant to section 45a–364, he shall be barred from asserting or recovering on such claim from the fiduciary, the estate of the decedent or any creditor or beneficiary of the estate, except for such part as has not been rejected.”

FN8. General Statutes § 45a–364(a) states in relevant part:  “Whenever a claim has been rejected, in whole or in part, as provided in section 45a–360, the person whose claim has been rejected may, within thirty days from and including the date of such rejection, make application to the Court of Probate to hear and decide such claim or, in the alternative, may apply to said court for the appointment of one or more disinterested persons, at least one of whom shall be an attorney-at-law, admitted to practice in this state, to be a commissioner or commissioners to hear and decide such claim.”.  FN8. General Statutes § 45a–364(a) states in relevant part:  “Whenever a claim has been rejected, in whole or in part, as provided in section 45a–360, the person whose claim has been rejected may, within thirty days from and including the date of such rejection, make application to the Court of Probate to hear and decide such claim or, in the alternative, may apply to said court for the appointment of one or more disinterested persons, at least one of whom shall be an attorney-at-law, admitted to practice in this state, to be a commissioner or commissioners to hear and decide such claim.”

FN9. General Statutes § 45a–353(d) provides:  “ ‘Claim’ means all claims against a decedent (1) existing at the time of the decedent's death or (2) arising after the decedent's death, including, but not limited to, claims which are mature, unmatured, liquidated, unliquidated, contingent, founded in tort, or in the nature of exoneration, specific performance or replevin[.]”.  FN9. General Statutes § 45a–353(d) provides:  “ ‘Claim’ means all claims against a decedent (1) existing at the time of the decedent's death or (2) arising after the decedent's death, including, but not limited to, claims which are mature, unmatured, liquidated, unliquidated, contingent, founded in tort, or in the nature of exoneration, specific performance or replevin[.]”

Wiese, Peter E., J.