Anna Messina v. Andrew Buzzi, Executor of the Estate of John V. Valluzzo (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS

The defendant, Andrew Buzzi, Executor of the Estate of John V. Valluzzo, has moved the court, pursuant to P.B. Section 10–31(1), to dismiss the instant action for the reason that the court lacks the requisite subject matter jurisdiction to enter judgment.

This case was brought by the plaintiff, Anna Messina, pursuant to General Statutes § 47a–43 et seq., Entry and Detainer.   The movant argues that the allegations make the case more correctly one subject to the provisions of Chapter 802b, C.G.S., more specifically, § 45a–353(d) which defines what are properly claims against an estate and § 45a–358(a) which requires all claims against an estate to be submitted in writing to the fiduciary.   He also references § 45a–363(a) which provides that no person who has submitted a claim shall be entitled to commence suit unless and until such claim has been rejected in whole or in part.   None of those requirements have been met in this case and, for that reason, the movant argues that this court lacks the requisite jurisdiction.

The plaintiff argues that while she does seek relief against the actions of the executor of the estate, her rights are not as a creditor of the estate but rather as a person in peaceable possession of property owned by the estate who has been unlawfully dispossessed by the acts of the executor.

The parties appeared before the court through counsel and offered evidence and testimony regarding the plaintiff's claims and the court reserved decision.

Practice Book § 10–31(a)(2) provides that a “motion to dismiss shall be used to assert ․ lack of jurisdiction over the person ․” “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  Blumenthal v. Barnes, 261 Conn. 434, 442 (2002).   “In ruling upon whether a complaint survives 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.”  Brookridge District Assn. v. Planning & Zoning Commission, 259 Conn. 607, 611 (2002).  “A ruling on a motion to dismiss is neither a ruling on the merits of the action ․ nor a test of whether the complaint states a cause of action ․ Motions to dismiss are granted solely on jurisdictional grounds.”  Pitruzello v. Muro, 70 Conn.App. 309, 312 (2002).

In support of his claim that the action can and should be treated as one brought under the probate procedure statutes, the defendant cites two Superior Court cases involving claims by persons put off the property of the estate by the fiduciary.   Those cases are Gloria Riendeau v. Robert C. Grey, Executor, Superior Court, judicial district of Litchfield, Docket No. CV–10–6002202–S (August 11, 2010), and Susan A. Taylor v. Karen S. Moffat, Superior Court, judicial district of Hartford, Docket No. CV–05–4017734–S (April 18, 2008).

In the Riendeau case, there was no allegation by the plaintiff that the defendant was in violation of § 47a–43 et seq., C.G.S. That case did not deal with a challenge to the jurisdiction of the Superior Court as opposed to the Probate Court.   It is not relevant to the issues before this court.

The Taylor case involved an appeal from the denial of the plaintiff's claims by the Probate Court of Torrington.   In Taylor, however, there was a claim by the plaintiff that the administratrix had committed forcible entry and detainer in violation of § 47a–43 when she had the Torrington Police Department put the plaintiff off the subject premises following the sudden death of the plaintiff's living companion who had owned the residence.

Having reviewed that decision, the court finds that there were critical differences in that case and the instant case.   In Taylor, the plaintiff told the fiduciary that she did not intend to resume residing in the residence except for the night of the decedent's wake and she then refused to vacate.   Also, in that case the plaintiff did file an entry and detainer action in the G.A. Court at Bantam, but that case never went to judgment because the plaintiff withdrew it as part of an agreement with the fiduciary whereby the fiduciary agreed to allow the plaintiff access to the residence on four weekends in a row to remove her belongings.   The Taylor suit then continued but strictly limited to claims she had against the estate separate and apart from the entry and detainer issues.

Having considered the evidence and testimony, the court finds that the action is properly one brought under § 47–43 et seq., C.G.S. and further finds that the plaintiff has met her burden of proving that she was in peaceable possession of the subject premises located at 423 Ridgebury Road in the town of Ridgefield when she was wrongfully dispossessed by the defendant in violation of that statute.

The court finds that it has the requisite jurisdiction to hear and decide this matter and, for that reason, the defendant's motion to dismiss is hereby denied.

The findings of fact upon which this order is entered are articulated more specifically in the August 28, 2013 memorandum of decision (Doherty, J.) entering judgment on behalf of the plaintiff.

BY THE COURT,

JOSEPH W. DOHERTY, JUDGE

Doherty, Joseph W., J.