W. Hudson Connery, Jr. v. Elizabeth May Gieske, Executrix of Estate of Ann May Moore et al. (2013)

MEMORANDUM OF DECISION

This action is an appeal filed on April 15, 2013, pursuant to General Statutes § 45a–186 from orders of the Milford Probate Court issued at a hearing on March 6, 2013.   Before the court are the motions to dismiss the appeal as untimely filed by defendant executrix, Elizabeth May Gieske, and by the decedent's defendant children, Gwendolyn Calla Moore Gelb, John P. Moore, and Fletcher Moore (the “Moores”).   Ms. Gieske has also filed a motion to dismiss the Reasons for Appeal based on her contention that the appeal was untimely filed.

In his Complaint, the plaintiff, who was married to the decedent at the time of her death, claims that the Probate Court improperly refused to allow various issues to be removed from its court and tried by a jury in the Superior Court pursuant to General Statutes § 45a–98a and instead retained jurisdiction and ruled on the issues at the March 6, 2013 hearing.   The plaintiff also seeks to appeal the Probate Court's refusal at that hearing to consider the merits of his Notice of Claim contesting the validity of the will.¹  The Probate Court did not issue a written decision, and no written notice of decision was sent as of June 10, 2013, when this court heard the instant motions.   The Complaint and Reasons for Appeal were filed with the Superior Court on April 15, 2013, which was forty days after the hearing in Milford Probate Court at which the orders were issued.

The executrix, Ms. Gieske, and the decedent's children, the Moores, have moved to dismiss the Complaint, and Ms. Gieske has moved to dismiss the Reasons for Appeal,² arguing that the court lacks subject matter jurisdiction because the Complaint was filed more than thirty days after the issuance of the orders, as required by § 45a–186(a).   Plaintiff asserts that § 45a–186 refers only to the appeal of written decisions and, because the Probate Court did not issue a written opinion or notice of decision, his time to appeal has not yet commenced.   Additionally, the plaintiff alludes to various constitutional claims in his opposition to the motions to dismiss, asserting that those claims would not be controlled by the filing requirements of § 45a–186.   For the reasons set forth below, the motions to dismiss of Ms. Gieske and the Moores are granted, and Ms. Gieske's motion to dismiss the Reasons of Appeal is denied as moot.

DISCUSSION

A motion to dismiss properly attacks the jurisdiction of the court, essentially stating that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.  Heussner v. Hayes, 289 Conn. 795, 802, 961 A.2d 365 (2008).   In Corneroli v. D'Amico, 116 Conn.App. 59, 60–61, 975 A.2d 107, cert. denied, 293 Conn. 928, 980 A.2d 909 (2009), the Appellate Court, pursuant to § 45a–186, affirmed the dismissal of an appeal from a Probate Court decision because it was filed more than thirty days after the decision.   The court explained,

The right to appeal from a decision of the Probate Court is statutory.   Satti v. Rago, 186 Conn. 360, 364, 441 A.2d 615 (1982);  Sacksell v. Barrett, 132 Conn. 139, 146, 43 A.2d 79 (1945);  R. Folsom, Connecticut Estates Practice, Probate Litigation (2d Ed.2008) § 7:1, p. 7–2.  “Our legislation has always favored the speedy settlement of estates, and to that end has carefully limited the time within which such appeals [from probate] must be taken ․ It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation ․ Our courts of probate have a limited jurisdiction and can exercise only such powers as are conferred on them by statute ․ They have jurisdiction only when the facts exist on which the legislature has conditioned the exercise of their power ․ The Superior Court, in turn, in passing on an appeal, acts as a court of probate with the same powers and subject to the same limitations ․ In acting on an appeal from probate, the Superior Court does not exercise the jurisdictional powers vested in it by the constitution but, instead, exercises a special and limited jurisdiction conferred on it by the statutes.”  ․ Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565–66, 192 A.2d 44 (1963) (internal quotation marks omitted).

Id., 63.

Accordingly, the right to appeal a decision of the Probate Court is strictly regulated by statute.   Here, the applicable statute, § 45a–186(a), provides in relevant part:

Except as provided in sections 45a–187 and 45a–188, any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may, not later than forty-five days after the mailing of an order, denial or decree for a matter heard under [the provisions relating to conservatorships or guardians] and not later than thirty days after mailing of an order, denial or decree for any other matter in a court of probate, appeal therefrom to the Superior Court.  [Emphasis added.]

Section § 45a–187(a) is also relevant, and provides in pertinent part:

An appeal by persons of the age of majority who are present or who have legal notice to be present, or have been given notice of their right to request a hearing ․ shall be taken within the time provided in section 45a–186, except as otherwise provided in this section.

Based on the reference in § 45a–186 to the “mailing of an order, denial or decree” as the commencement of the period in which to file an appeal, the plaintiff asserts that his time to appeal has not run because no order, denial or decree was mailed to him as the orders were rendered orally at the hearing attended by counsel for the parties on March 6, 2013.

Plaintiff's argument, taken to its logical conclusion, would lead to the finding that there is no limit to the time in which an oral order or decision of the Probate Court could be appealed.   An equally unpalatable conclusion is that such orders cannot be appealed because they are not authorized by the applicable statute.   Either interpretation is repugnant to the finding of the Supreme Court, as quoted above in Corneroli, that “[o]ur legislation has always favored the speedy settlement of estates, and to that end has carefully limited the time within which such appeals [from probate] must be taken.”   Corneroli v. D'Amico, supra, 116 Conn.App. at 63.

There appears to be nothing improper about the Probate Court's entry of an oral order or the lack of written notice thereof to the plaintiff.   The Milford Probate Court has adopted rules which would require the instant orders to be reduced to writing.   These rules, however, did not take effect until July 1, 2013, after the orders in question in this appeal were issued.   No written notice of the orders was required under the provisions of General Statutes § 51–53(a), which provides in relevant part:

Whenever any court, including a court of probate ․ makes or renders any decision, order, decree, or denial or ruling, unless it is made or rendered in the presence of counsel in the matter, the clerk of the court shall immediately notify counsel and any appearing party, in writing by mail or electronic delivery of the decision, order, decree, denial or ruling.  [Emphasis added.]

All parties concede that they or their counsel were present at the March 6, 2013 hearing.   Accordingly, no written notice was required.   As a result, the court is faced with a challenging question of statutory construction.   General Statutes § 1–2z provides guidance:

The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.

Here, the competing alternative interpretations mentioned above based on the plain meaning of the statute as to when and if the appeal of an oral probate court order is authorized present the type of “absurd or unworkable” result that authorizes resort to legislative history.

The probate appeal provisions of Chapter 801b have been amended several times in the past six years.   In 2007, the appeal procedure was substantially changed by the passage of No. 07–116 of the 2007 Public Acts (P.A. 07–116).   Rather than filing a motion for leave to appeal with the probate court, an appellant would commence the appeal by filing directly with the Superior Court:

The significant changes to this statute, brought about by passage of P.A. 07–116, coupled with the simultaneous repeal of §§ 45a–191 and 45a–192, the only statutes that referred to the previous practice of filing a motion for permission to appeal with the Probate Court, reveal a clear legislative intention to consolidate and even to simplify and to clarify the probate appeal process.   In amending the statute, the legislature eliminated any previous requirement that an aggrieved party file a motion for permission to file an appeal with the Probate Court to commence his appeal.

Corneroli v. D'Amico, supra, 116 Conn.App. at 64.

Additionally, the 2007 amendments added the forty-five-day appeal period for guardianship and conservatorship matters.   See Testimony of Hon. Paul J. Knierim before Judiciary Committee, February 28, 2011, Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 2011 Sess., p. 467.   However, § 45a–187(a) at the time provided, in relevant part:

An appeal under section 45a–186 by persons of the age of majority who are present or who have legal notice to be present, or who have been given notice of their right to request a hearing or have filed a written waiver of their right to a hearing, shall be taken within thirty days, except as otherwise provided in this section.

Section 45a–187 pertained to persons of the age of majority who attend a hearing or have notice of the hearing and provided that their appeal period ran from the hearing and not from any written notice, presumably because they already had notice by reason of their attendance.   See Kron v. Thelen, 178 Conn. 189, 197 n.3, 423 A.2d 857 (1979) (statutory appeal period begins with notice of decree);  Manthorne v. Borner, Superior Court, judicial district of Windham, Docket No. CV–08–4008179–S (September 22, 2009) (probate appeal dismissed because filed more than thirty days after probate court issued order at hearing at which parties were in attendance).

However, the wording of § 45a–187 at the time was problematic because § 45a–186 also provided for a forty-five-day appeal period in certain situations and was not limited simply to a thirty-day period.   As a result, in 2011, the legislature passed No. 11–128 of the 2011 Public Acts (P.A. 11–128), which brought § 45a–187 to its current wording.  Section 13 of P.A. 11–128 provided in relevant part:

Section 45a–187 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2011 ):

(a) An appeal [under section 45a–186] by persons of the age of majority who are present or have legal notice to be present, or who have been given notice of their right to request a hearing or have filed a written waiver of their right to a hearing, shall be taken within [thirty days] the time provided in section 45a–186, as amended by this act, except as otherwise provided in this section.

By means of P.A. 11–128, the legislature solved one problem in that it clarified that either a thirty- or forty-five-day appeal period would apply as appropriate by reference to § 45a–186, but it created a new problem in that the latter section commences the notice period from mailing, which necessarily presupposes a written decision or notice, whereas the previous language of § 45a–187 commenced the notice period from the rendering of the order at a hearing at which the parties were present or had some other sort of notice of the hearing.   Thus, the plain language of these two statutes appears to omit a procedure for the appeal of an oral probate order.

The decision in Corneroli suggests a way to deal with this conundrum:

․ [I]n interpreting the actions of the legislature, we presume ․ that “in enacting a statute, the legislature intended a change in existing law.”  ․ Middlebury v. Dept. of Environmental Protection, 283 Conn. 156, 173, 927 A.2d 793 (2007).   Such presumption may be “may be rebutted by contrary evidence of the legislative intent in the particular case.”  ․ Id.

Corneroli v. D'Amico, supra, 116 Conn.App. 65.

Here, several sources of legislative intent are helpful.   First, a summary of P.A. 11–128 prepared by the Office of Legislative Research explained that § 13, among others, “makes changes and clarifications regarding how much time parties have to appeal probate matters ․” Office of Legislative Research, Summary for Public Act No. 11–128, p. 1, available at http:// www.cga.ct.gov/2011/SUM/2011SUM00128–R02HB–06438SUM.htm (last visited October 16, 2013).   Second, a memorandum by Judge Paul J. Knierim, Probate Court Administrator, to the Judiciary Committee, dated February 28, 2012, provides as follows:

An Act Concerning Probate Court Operations is the probate court system's sole agency bill for the 2011 session.   It covers several different topics related to the administration of probate courts ․

Sections 12–15 Appeals

The bill would address confusion that has arisen since the probate appeals statutes were modified in 2007.   Specifically, it would amend C.G.S. §§ 45a–186 through 45a–188 to clarify which types of proceedings are subject to the 45–day appeals period (i.e., guardianships for adults with developmental disabilities and conservatorships).   The appeals period for most all other probate matters is 30 days.

Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 2011 Sess., pp. 606, 608.

Third, Judge Knierim testified before the Judiciary Committee with respect to P.A. 11–128 as follows:

So our solution to it [the confusion] is [sic] 186 is the provision that establishes the two different time periods for the types of cases to which they apply. 187, which deals with some other circumstances, presently, also has reference to the old, 30–day appeals period that use[d] to apply to everything.   Our solution would be, take any time references out of 187 and just have it cross-reference back to 186 so that there be only one source in the statutes for the number of days that apply.  [Emphasis added.]

Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 2011 Sess., p. 468.

From the foregoing, it appears that the intent of the legislature was not to eliminate the ability to appeal oral orders of the Probate Courts, as provided in § 45a–187, but to make them subject to the same time periods applicable to the appeal of written orders.   Judge Knierim stated the purpose of the act was to clarify “the number of days that apply” and did not indicate that any procedural change was intended.   Indeed, if mailed notice were the only method which could commence the appeal period in § 45a–187, there would be no need for the language in the first clause of the section, which refers to an appeal by “persons who are present or who have legal notice to be present” at the hearing at which the decision was rendered.   See General Statutes § 45a–187(a).

As it is the duty of the court when engaged in statutory interpretation to apply a construction which harmonizes all sections of a statutory scheme to the extent possible and to give meaning to such sections;  see Nizzardo v. State Traffic Commission, 259 Conn. 131, 157–58, 788 A.2d 1158 (2002);  the court holds that the appropriate time period under § 45a–187 may be either thirty or forty-five days, depending on the issue involved, and that the period commences, where there is no written order, from the time the oral order is entered at a hearing at which the parties are present or otherwise have notice as provided in § 45a–187.³

As a result, the plaintiff's appeal should have been filed within thirty days of the hearing of the Milford Probate Court.   As it was not filed within that time, this court lacks jurisdiction over this appeal.

Finally, in his memorandum in opposition to the motions to dismiss, the plaintiff asserts that the Probate Court's orders denied him his constitutional right to a jury and deprived him of due process in some unspecified way, and that the court has jurisdiction to determine these questions.   These assertions are not well-founded for a variety of reasons.   First, neither of these claims is contained in the Complaint or the Reasons for Appeal, and so are not before the court.  Marshall v. Marshall, 71 Conn.App. 565, 570, 803 A.2d 919, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002);  Wild v. Cocivera, Superior Court, judicial district of Hartford, Docket No. CV–12–6034892–S (April 2, 2013).   Second, the Superior Court is a court of limited jurisdiction when deciding a probate appeal, and not a constitutional court of general or common-law jurisdiction.  Heiser v. Morgan Guaranty Trust Co., supra, 120 Conn. at 565–66.   Although a party may initiate an equitable proceeding directly attacking the order or decree of a probate court, relief may be granted only in exceptional circumstances where the court finds that the decrees were procured by fraud, accident, mistake or on similar grounds.  Ferris v. Faford, 93 Conn.App. 679, 691, 890 A.2d 602 (2006);  Holliday v. Johnson, Superior Court, judicial district of Fairfield, Docket No. CV–11–5029509–S (January 24, 2012).   Third, the plaintiff's claims of deprivation of constitutional rights lack analysis, citation to the record or to legal authority and as such “will not suffice to apprise a court adequately of the precise nature of the claim.”  Silverstein v. Camposeo, 122 Conn.App. 338, 341 n.1, 999 A.2d 15, cert. denied, 298 Conn. 926, 5 A.3d 487 (2010) (affirming dismissal of untimely appeal from oral probate court ruling), quoting LaBow v. LaBow, 85 Conn.App. 746, 751–52, 858 A.2d 882 (2004), cert. denied, 273 Conn. 906, 868 A.2d 747 (2005).

Accordingly, the court GRANTS the motions to dismiss of executrix Gieske and of the Moores and DENIES Ms. Gieske's motion to dismiss the Reasons of Appeal as moot.

SO ORDERED,

Hon. Charles T. Lee

FOOTNOTES

FN1. The will was admitted to probate by order of the Probate Court dated January 19, 2012.   Plaintiff did not appeal the decision, but instead filed a Notice of Claim on June 3, 2012..  FN1. The will was admitted to probate by order of the Probate Court dated January 19, 2012.   Plaintiff did not appeal the decision, but instead filed a Notice of Claim on June 3, 2012.

FN2. Practice Book § 10–76(a) provides in relevant part:  “Unless otherwise ordered, in all appeals from probate the appellant shall file reasons of appeal ․ within ten days after the return day, and pleadings thereafter shall follow in analogy to civil actions.”.  FN2. Practice Book § 10–76(a) provides in relevant part:  “Unless otherwise ordered, in all appeals from probate the appellant shall file reasons of appeal ․ within ten days after the return day, and pleadings thereafter shall follow in analogy to civil actions.”

FN3. The court notes that this interpretation is consistent with the Practice Book section governing when the appeals period begins from decisions of the Superior Court, which provides in relevant part:  “If notice of the judgment or decision is given in open court, the appeal period shall begin on that day.   If notice is given only by mail, the appeal shall begin on the day that notice was mailed to counsel and pro se parties of record by the trial court clerk.”  Practice Book § 63–1(b)..  FN3. The court notes that this interpretation is consistent with the Practice Book section governing when the appeals period begins from decisions of the Superior Court, which provides in relevant part:  “If notice of the judgment or decision is given in open court, the appeal period shall begin on that day.   If notice is given only by mail, the appeal shall begin on the day that notice was mailed to counsel and pro se parties of record by the trial court clerk.”  Practice Book § 63–1(b).

Lee, Charles T., J.