Dennis Witsoe et al. v. Ajax Electric Company et al. (2013)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO WAIVE ANCILLARY ADMINISTRATION (# 276)

I

FACTS

In this asbestos action, the plaintiff, Catherine Witsoe, executor of the estate of Dennis Witsoe, seeks to recover damages for injury suffered by Dennis Witsoe (decedent) as a result of his exposure to asbestos, which allegedly caused him to develop mesothelioma.¹  On February 8, 2013, the plaintiff was appointed as the executrix of the decedent's estate by a New Hampshire probate court.²  On April 24, 2013, the plaintiff filed a motion to substitute herself as executor of the decedent's estate, which was granted by this court on June 3, 2013.

Before the court is the plaintiff's April 25, 2013 “Motion to Waive Ancillary Administration.”   The plaintiff, who has not obtained ancillary administration in Connecticut, moves to waive ancillary administration on the grounds that it is not a prerequisite to the court's subject matter jurisdiction and is not required in order to maintain the present action.   One of the defendants, Blue M., filed its objection on July 2, 2013.   The court heard oral argument on July 8, 2013.

II

DISCUSSION

In the plaintiff's motion, she makes two claims.   First, she claims that her failure to obtain ancillary administration in Connecticut does not implicate subject matter jurisdiction.   In support of this position, the plaintiff cites McCoy v. Raucci, 156 Conn. 115, 239 A.2d 689 (1968), and a line of decisions of the Superior Court arising therefrom, for the proposition that the absence of ancillary administration does not implicate the court's subject matter jurisdiction.   She argues that in the present case, the plaintiff's authority to sue on behalf of the estate is not derived from her appointment by the Probate Court but, rather, directly from the Connecticut Product Liability Act, General Statutes § 52–572m et seq.   Second, she claims that she does not need to obtain ancillary administration at all in order to sue for the decedent's injuries and resulting death.   Again relying upon McCoy, she argues that a plaintiff's status as an out of state executor allows her to bring this action in a representative capacity regardless of whether her appointment was issued by a court in Connecticut or by a court in a foreign jurisdiction.

In response, the defendant argues that obtaining ancillary administration in Connecticut is a prerequisite to a foreign executor or administrator's right to bring suit in this state, but does not directly argue that the failure to do so implicates subject matter jurisdiction.   In fact, citing McCoy v. Raucci, supra, 156 Conn. 115, 118–19, the defendant posits that an attack on the plaintiff's legal capacity to sue should be raised as a special defense, which seems to imply that such an attack does not implicate subject matter jurisdiction, which can be raised at any time.

Procedurally and conceptually, this is an unusual motion.   The plaintiff is raising the issue of the court's subject matter jurisdiction to hear her own claim, and the defendant does not seem to contest the court's jurisdiction.   Moreover, the relief requested by the plaintiff's “Motion to Waive Ancillary Administration” is facially dubious because waiver is the relinquishment of a known right.  Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 777, 653 A.2d 122 (1995).   Obtaining ancillary administration, if it is required, would not be considered a right, but an obligation.   Even if it is viewed as a right to enforce the obligation, it would not be the plaintiff's to waive.   That power, if it exists, would belong to the defendant.   As to the plaintiff's second claim, which asserts that obtaining ancillary jurisdiction in Connecticut is altogether unnecessary, the court is mindful that it may only decide actual and existing controversies, and cannot issue advisory opinions on hypothetical points of law.  State v. Milner, 309 Conn. 744, 751, 72 A.3d 1068 (2013).   Thus, the court will only address the plaintiff's second claim to the extent that it is necessary to clarify the scope of the court's ruling regarding subject matter jurisdiction, or to the extent that the court can grant any practical relief sought by the plaintiff's motion.

“Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ․ The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.”  (Internal quotation marks omitted.)   Burton v. Dominion Nuclear Connecticut, Inc., supra, 300 Conn. 551.  “[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).   “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.”  (Internal quotation marks omitted.)  Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413–14, 35 A.3d 188 (2012).  “[I]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  Keller v. Beckenstein, 305 Conn. 523, 531, 46 A.3d 102 (2012).   The doctrine of justiciability comprises several related doctrines which implicate the court's subject matter jurisdiction, one of which is the doctrine of standing.  Keller v. Beckenstein, 305 Conn. 536.  “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.)  Electrical Contractors, Inc. v. Dept. of Education, supra, 411.

Whether ancillary administration is a prerequisite to the court's subject matter jurisdiction for out of state executors is not well settled in Connecticut.   Beginning in the 1800s, Connecticut courts treated ancillary appointment as a jurisdictional threshold.   In 1842, our Supreme Court held:  “it is well settled, that, at common law, the power of an administrator is co-extensive only with the jurisdiction of the court that appoints him.   And though an executor receives his power by the will of the testator, yet his right to appear in any court, and the validity of his acts in that capacity, depend wholly on the probation of the will of the prerogative court within the limits of that local jurisdiction in which he claims the power to act.”   Hobart v. Connecticut Turnpike Co., 15 Conn. 145, 147 (1842).   Thus, the court concluded:  “[w]e do not recognize the existence of administrators or executors appointed or approved in a foreign jurisdiction.   These executors, therefore, have no power here;  having never proved the will here, nor given bond to our probate court.”  Id.

Two years later, the court reaffirmed this principle, stating:  “The property of individuals in a foreign country, is under the care and guardianship of the laws of that country.   The owners frequently acquire credit upon the strength of such property;  and it would seem to be just that the sovereign power which guarded it, should direct that it should be fairly applied, and not suffer it to be withdrawn, by persons over whom they can have no [control].”  Holcomb v. Phelps, 16 Conn. 127, 134–35 (1844).   The court continued:  “Accordingly, it seems to be the common law of every country and of every state, that if one claims the goods of a deceased person, he must do it under such regulations, and subject to such disposition, as the laws of that state have imposed.   It is therefore now well understood, that an executor or administrator, by virtue of his appointment in one state or country, derives no authority to seize the goods of the deceased, or to bring actions for his debts, in another country or state, unless he obtain new powers and give new security in the state or country where such goods are, or such debtors reside.”  Id., 135.  “The question is not ․ whether such goods are assets, but who is clothed with authority to administer them;  and this must be decided by the local jurisdictions where they are situated.”  Id., 136, citing J. Story, Conflict of Laws, (1834) 426 § 513.

In 1918, our Supreme Court stated the general rule that “[t]he qualification of an administrator or executor in a foreign jurisdiction does not, as such, give him the right to administer upon assets here, or to sue to recover a debt here.   He must first take out ancillary administration.”  Equitable Trust Co. v. Plume, 92 Conn. 649, 654, 103 A. 940 (1918).   In that case, the plaintiff trust company was appointed ancillary executor of the estate of the original plaintiff, a nonresident, by a local probate court.   The original plaintiff died during the course of the action, and the plaintiff trust company sought, on behalf of his estate, to secure payment of a debt from a trust in which one of the defendants, a nonresident, had a life use.   The trial court granted a motion to erase, which is now a motion to dismiss, on the ground that the trust company had no right to sue as executor, and denied a motion to reopen the judgment erasing the case from the docket.   Our Supreme Court affirmed, holding that the probate court had no jurisdiction to appoint the trust company as executor because it failed to appoint the secretary of state as its attorney as required by statute, and thus the motion to erase was properly granted.   The court stated:  “The Court of Probate was without power to appoint the plaintiff trust company executor, and therefore its judgment was a nullity.”  Id., 657.   The court called the failure to appoint the secretary of state as the plaintiff trust company's agent for service of process “a jurisdictional defect, [which] may be taken advantage of at any time, and directly or collaterally.”  Id. Thus, the court clearly understood the defect in ancillary appointment to implicate subject matter jurisdiction.

Under Hobart, Holcomb, and Equitable Trust Co., therefore, whether a foreign executor has received ancillary appointment was considered an issue of subject matter jurisdiction because an executor is an officer of the state, clothed with authority received from the state.   If an executor is not clothed with the proper authority under the laws of Connecticut, that executor lacks standing.   See also Perrine v. Ackerly, Superior Court, judicial district of Stamford, Docket No. CV–85–09078846–S (December 19, 1990) (3 Conn. L. Rptr. 67) (as matter of subject matter jurisdiction, foreign executor must receive ancillary appointment);  Cramer v. Tepp, 6 Conn.Sup. 320, 322 (1938) (“Executors and administrators are officials only of the court in the State where they were appointed, and consequently neither executors nor administrators appointed and qualified in a foreign jurisdiction can sue [in Connecticut] until qualified here”).

At the same time, however, there exists a conflicting line of cases that treats a challenge to an executor's capacity to sue as a mere special defense that must be pleaded in accordance with Practice Book § 10–46.³  See, e.g., McCoy v. Raucci, supra, 156 Conn. 115 (challenge to executor's capacity to sue must be pleaded in answer as special denial);  Civitarese v. Wheeler, Superior Court, judicial district of New London, Docket No. CV–54–45–51–S (May 14, 1999) (24 Conn. L. Rptr. 500) (same);  Rhoads v. Newman Enterprises, Superior Court, judicial district of Hartford, Docket No. CV–93–0522545–S (October 8, 1993) (10 Conn. L. Rptr. 211) (same);  Estate of Tapia v. Burns, Superior Court, judicial district of Fairfield, Docket No. CV–91–0284858–S (September 21, 1993) (10 Conn. L. Rptr. 91) (same);  First Wisconsin Trust Co. v. Pine, 6 Conn.Sup. 323 (1938) (same).   These cases imply that ancillary administration is not an issue of subject matter jurisdiction because, if it were, it could be raised at any time regardless of whether it was contained in the pleadings.   Complicating matters, none of the cases in the McCoy line acknowledge that Hobart, Holcomb, and Equitable Trust Co. represent conflicting authority.⁴

In McCoy, the plaintiff was the executor of the estate of a decedent that had been struck and killed in an automobile accident.   The plaintiff brought an action against the defendant for injuries and death arising from the accident.   The Supreme Court summarized the issues before the trial court as follows:  “At the conclusion of the trial, the defendant, for the first time, orally sought to raise an issue as to McCoy's status to maintain the action.   The claim was that the court lacked jurisdiction of the subject matter and the parties because the decedent's domicile was in Canada, and consequently the executor's appointment by the Bridgeport Probate Court should have been ancillary.   Upon the premise that the defendant was entitled to raise an issue of jurisdiction at any time, the plaintiff did not object, and evidence was offered by the parties on the subject of the decedent's domicil.   The court decided that the defendant's attack was not timely but that, nevertheless, as a conclusion of fact, the decedent was domiciled in Bridgeport at the time of his death as the Probate Court had decided.”  Id., 116–17.

The Supreme Court held that the propriety of the plaintiff's ancillary appointment was not jurisdictional, stating:  “The attack was upon the capacity in which the plaintiff undertook to sue rather than an attack upon the jurisdiction of the court ․ It cannot successfully be urged that the court lacked the power to hear and determine an action for wrongful death brought under § 52–555 of the General Statutes.   No question is raised as to the process, and the parties were not only personally present but had been fully heard on the issues presented by the pleadings.   The defendant's only objection is that the plaintiff should have been before the court in the capacity of an ancillary executor rather than as an executor.   Such a claim, if it had any validity, came too late.   The design of the rules of practice is to have formal and technical objections made known at an early stage of the proceedings so that, if necessary, a plaintiff may amend and proceed anew.”  (Citation omitted;  internal quotation marks omitted.)  Id., 117–18.   Citing General Statutes § 52–93, the court clarified that “[a]ny attack on the capacity in which the plaintiff undertook to sue should have been made in a preliminary pleading or in the defendant's answer.”  Id., 118–19.

Relying on McCoy, the court in Estate of Tapia v. Burns, supra, 10 Conn. L. Rptr. 91, found that the failure to obtain ancillary administration in Connecticut was not a jurisdictional defect.   The court stated:  “In Connecticut a challenge to the right of a plaintiff to sue as a fiduciary must be raised by a special defense.   Section 160 of the Practice Book [currently Practice Book § 10–46] provides that ‘if the defendant intends to controvert the right of the plaintiff to sue as executor, or as trustee, or in any other representative capacity ․ he shall deny the same in his answer specifically.’  “ Id., 92.   Citing treatises, the court also noted that “[t]he general rule in other states is also that lack of capacity of a plaintiff-fiduciary may bar a recovery, but it does not go to the jurisdiction of the court.  1A CJS 44, Actions, Section 359;  39 Am.Jur.2d 169, Guardian and Ward, Section 220.”  Id.

In light of McCoy, this court concludes that the failure to obtain ancillary administration in Connecticut is not a jurisdictional defect.   Although it did not explicitly overrule the older line of cases that reached the opposite conclusion, i.e., Hobart, Holcomb, and Equitable Trust Co., it clearly distinguished between an attack upon the capacity in which a plaintiff undertakes to sue and an attack upon the jurisdiction of the court.   It characterized such an attack on the capacity of a plaintiff as a formal and technical objection which must be pleaded in accordance with our rules of practice in a preliminary pleading or in an answer.   Importantly, McCoy cites General Statues § 52–93,⁵ which is the same in all material respects to what is currently Practice Book § 10–46.   If the court were to conclude that an attack upon capacity did implicate subject matter jurisdiction, and thus could be raised at any time, it would essentially nullify the longstanding rule recognized in McCoy and the current practice book that such an attack must be specially denied, a rule that finds its origin in the Practice Act of 1878.   See Public Acts 1878, No. 83, § 3.

Although no court in Connecticut has fully addressed the conceptual distinction between a mere attack upon the capacity of a plaintiff to sue and an attack upon subject matter jurisdiction, it has been explained in other jurisdictions with similar rules of practice.   In Currier v. Sutherland, the Colorado Supreme Court, citing Federal Practice and Procedure, opined:  “Distinct from the issue of a court's subject matter jurisdiction over a case is a party's capacity to sue or be sued.   The difference between the two has been described in the following way:  ․ Capacity has been defined as a party's personal right to come into court, and should not be confused with the question of whether a party has an enforceable right or interest or is the real party in interest.   Generally, capacity has been conceived of as a procedural issue dealing with the personal qualifications of a party to litigate and typically is determined without regard to the particular claim or defense being asserted ․ 6A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1559 (2d ed.1990).   This court has long recognized that a party's lack of capacity has no effect on a court's subject matter jurisdiction.”   Currier v. Sutherland, 218 P.3d 709, 712–13 (Colo.2009).   The court noted the historical split of authority on the issue, but acknowledged that the recent trend has been to distinguish capacity from subject matter jurisdiction.  Id., 713.

The Currier court also recognized that if an attack upon the capacity of a party did implicate subject matter jurisdiction, it would run contrary to Colorado's procedural rules.  Currier v. Sutherland, supra, 218 P.3d 714.   In Colorado, “[w]hen a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge, and on such issue the party relying on such capacity, authority, or legal existence, shall establish same on the trial.”  Colo.R.Civ.P. 9(a)(1).   Thus, by requiring capacity to be challenged via “specific negative averment,” Colorado, like McCoy, treats such a challenge as a procedural one, i.e., a technical objection, which can be waived if not raised according to the rules of practice.   This is in contrast to a challenge to the subject matter jurisdiction of the court, which can be raised at any time.   In Currier, the court found that “[t]his procedural difference strengthen[ed][its] conclusion that subject matter jurisdiction and capacity are separate and distinct legal issues.”  Currier v. Sutherland, supra, 714.   The same can be said about the Federal Rules of Civil Procedure, which also require an attack upon a party's capacity to be made by “a specific denial.”  Fed.R.Civ.P. 9(a).

The present issue is conceptually analogous to the issue of corporate capacity to sue.   In United States Trust Co. of New York v. DiGhello, 179 Conn. 246, 425 A.2d 1287 (1979), the defendant appealed from a denial of his motion to open the judgment in a foreclosure action to assert a special defense regarding the corporate capacity of the plaintiff to maintain the lawsuit.   The defendant claimed that the original plaintiff, a Massachusetts trust, lacked corporate capacity to bring the action because it failed to comply with the provisions of General Statutes § 47–6a, which required it to file a certified copy of the declaration of trust with the Connecticut secretary of state.   The court stated:  “It is ․ clear that an attack on the corporate capacity of a plaintiff to sue must be raised by way of special defense.”  Id., 249.   The court held that “[s]uch a claim is but a voidable defect, waived, if not raised by a defendant in a timely manner.”  Id. The court distinguished between a “claim being made that the court lacked jurisdiction over the subject matter of the instant proceedings” and the claim before that court, which was “the corporate capacity of the plaintiff to maintain th[e] suit.”  Id. Similar to the various requirements with which foreign corporations must comply in order to have the capacity to maintain a suit in Connecticut, foreign executors must also comply with any applicable common-law or statutory requirements related to the capacity of the executor to sue in Connecticut courts.

Having determined that the failure of an out of state executor to obtain ancillary administration in Connecticut does not implicate subject matter jurisdiction but, rather, must be specially denied by the defendant, it becomes clear that the plaintiff's second claim is not properly before the court.   The plaintiff cannot obtain a binding judicial determination that it does not have a particular obligation when the defendant has yet to put that obligation at issue pursuant to our rules of practice.⁶  Such a determination would be merely advisory.   Nevertheless, the court notes that there is no reason to think that McCoy overruled the longstanding requirement that out of state executors must obtain ancillary administration in Connecticut prior to taking any legal action in this state.   See Equitable Trust Co. v. Plume, supra, 92 Conn. 654 (“The qualification of an administrator or executor in a foreign jurisdiction does not, as such, give him the right to administer upon assets here, or to sue to recover a debt here.   He must first take out ancillary administration”).  McCoy merely stated that the requirement is not a jurisdictional prerequisite.

III

CONCLUSION

For all of the aforementioned reasons, the plaintiff's motion is DENIED.

By THE COURT

BELLIS, J.

FOOTNOTES

FN1. The decedent had previously been the plaintiff in this action, but died on December 24, 2012..  FN1. The decedent had previously been the plaintiff in this action, but died on December 24, 2012.

FN2. The plaintiff was appointed by the Court of Probate, 8th Circuit, State of New Hampshire..  FN2. The plaintiff was appointed by the Court of Probate, 8th Circuit, State of New Hampshire.

FN3. Practice Book § 10–46 provides in relevant part:  “Any defendant who intends to controvert the right of the plaintiff to sue as executor, or as trustee, or in any other representative capacity, or as a corporation, or to controvert the execution or delivery of any written instrument or recognizance sued upon, shall deny the same in the answer specifically.”.  FN3. Practice Book § 10–46 provides in relevant part:  “Any defendant who intends to controvert the right of the plaintiff to sue as executor, or as trustee, or in any other representative capacity, or as a corporation, or to controvert the execution or delivery of any written instrument or recognizance sued upon, shall deny the same in the answer specifically.”

FN4. This court has not yet had occasion to squarely address the conflict between Hobart line of cases and more recent authority, such as McCoy, and has previously treated the Hobart line of cases as representing the law of this state.   Now being presented with the issue, the court takes this occasion to reconsider whether ancillary administration is a prerequisite to subject matter jurisdiction in this case, in light of McCoy and more recent authority..  FN4. This court has not yet had occasion to squarely address the conflict between Hobart line of cases and more recent authority, such as McCoy, and has previously treated the Hobart line of cases as representing the law of this state.   Now being presented with the issue, the court takes this occasion to reconsider whether ancillary administration is a prerequisite to subject matter jurisdiction in this case, in light of McCoy and more recent authority.

FN5. General Statutes (Rev. to 1968) § 52–93 provides in relevant part:  “If the defendant intends to controvert the right of the plaintiff to sue as executor, or as trustee, or in any other representative of any written instrument or recognizance sued upon, he shall deny the same in his answer specifically.”.  FN5. General Statutes (Rev. to 1968) § 52–93 provides in relevant part:  “If the defendant intends to controvert the right of the plaintiff to sue as executor, or as trustee, or in any other representative of any written instrument or recognizance sued upon, he shall deny the same in his answer specifically.”

FN6. Under our rules of practice, the question is put in issue by a defendant's election, or not, to plead lack of capacity.  Practice Book § 10–46.   Following such a pleading, the court may address the issue in accordance with the remainder of our rules of practice..  FN6. Under our rules of practice, the question is put in issue by a defendant's election, or not, to plead lack of capacity.  Practice Book § 10–46.   Following such a pleading, the court may address the issue in accordance with the remainder of our rules of practice.

Bellis, Barbara N., J.