Charles Altman, Conservator of the Person of Jeanne Altman v. Richard S. Dipreta, Conservator of the Estate of Jeanne Altman (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS NO. 104

FACTS

This case is an appeal from a decision of the Greenwich Probate Court, Hopper, J., awarding fees and expenses to the defendant for his services on behalf of his ward, Ms. Jeanne Altman.   On May 9, 2013, Judge David W. Hopper awarded $25,535.00 to the defendant, Richard S. DiPreta, for his services as conservator.   The plaintiff, Charles Altman, who is the conservator of the person of Ms. Altman (and also her adult son), challenges the fees and costs awarded to the defendant through this appeal, claiming they are excessive.   The plaintiff commenced this action by filing a “Summons–Civil” with the court using Form JD–CV–1, and “Complaint for Appeal,” dated June 18, 2013, returnable to the Stamford Superior Court on July 9, 2013, which included a complete copy of the Probate Court order being appealed and a return of service by Siegrun G. Pottgen, a state marshall for Fairfield County.   The return of service indicates that service was made upon the defendant by abode service, by delivery of a true and attested copy to the Greenwich Probate Court on June 25, 2013, and by mailing a copy to Edwin Altman, an interested person.

The defendant, who serves as conservator of the estate of Jeanne Altman, filed a motion to dismiss this action on July 29, 2013, on the ground of insufficiency of process.   The defendant asserts that this appeal is defective and should be dismissed because (1) the plaintiff improperly used the JD–CV–1 form, which is not prescribed for probate appeals;  (2) the summons was improperly completed in that it did not clearly state the judicial district to which it is returnable;  (3) the summons was not signed by the Clerk of the Court as required for civil actions where the plaintiff is not represented by counsel;  (4) the summons did not contain a bond for prosecution as required by Practice Book § 8–3(a);  (5) the plaintiff did not provide a recognizance of a third party for costs as required by Practice Book § 8–4(a);  and (6) the plaintiff failed to include on the return of service the address of the person making such service as required by General Statutes § 45a–186(c).

ANALYSIS

Practice Book § 10–31(a) provides in relevant part that “[t]he motion to dismiss shall be used to assert ․ insufficiency of process.”  “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 ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).   “When a ․ court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations in their most favorable light ․ In this regard, 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 ․ The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.”  (Citation omitted;  internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).   The defendant filed his motion to dismiss within thirty days of the return date, so his motion was timely filed under Practice Book § 10–32.

At the outset, the court notes that appeals from probate court decisions are governed by General Statutes § 45a–186.   The court further notes that § 45a–186(a) provides little guidance as to the form such appeals must take, stating in relevant part only that “[s]uch an appeal shall be commenced by filing a complaint in the superior court in the judicial district in which such court of probate is located ․ The complaint shall state the reasons for the appeal.   A copy of the order, denial or decree appealed from shall be attached to the complaint ․” Section 45a–186(a) also states that the time for taking an appeal relating to conservatorship matters pursuant to General Statutes “sections 45a–644 to 45a–677, inclusive,” shall be “not later than forty-five days after the mailing of an order, denial or decree for a matter heard” pursuant to said sections.   The plaintiff filed his complaint for appeal with the Stamford Superior Court on June 19, 2013, so the appeal is timely filed.   The court notes for the record that the complaint for appeal contains a statement of the reasons for the appeal and a copy of the order from which the appeal is taken.

Considering the claim of the defective summons first, the court agrees with the defendant that use of Form JD–CV–1 is improper for appeals brought in accordance with General Statues § 45a–186.   However, the court finds that inclusion of a form JD–CV–1 summons in this case, whether in proper form or not, is an insubstantial defect that does not justify dismissal of the plaintiff's probate appeal.   See, e.g., Durkin v. Durkin, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–98–0167978–S (Apr. 7, 1999, Lewis, J.) (24 Conn. L. Rptr. 291, 292) (holding that the probate appeal was satisfactorily commenced without a summons);  Ragette v. O'Grady, Superior Court, judicial district of Danbury, Docket No. CV–10–5008768–S (Dec. 8, 2010, Marano, J.) (finding defective notice and a defective summons insufficient grounds to dismiss probate appeal).   The recent case of Heussner v. Hayes, 289 Conn. 795, 807–08, 962 A.2d 365 (2008), specifically held that probate appeals are not subject to mesne process, stating that “[s]ection 45a–186 confers upon an aggrieved party an absolute right to appeal orders of the Probate Court to the Superior Court ․” The defendant has not cited any contrary authority for the specific proposition that a probate appeal requires a summons in any particular form.   Consequently, the court holds that no summons is necessary for an appeal brought pursuant to General Statutes § 45a–186, and service by the plaintiff of an improperly drafted summons is a circumstantial defect that should not and does not defeat the plaintiff's cause of action.

Next, the court finds that a probate appeal does not require compliance with Practice Book § 8–1(a), requiring that the summons include to which court it is returnable and be signed by a clerk of the court in cases where the plaintiff is proceeding without counsel.   The reasons for this are twofold.   First, the court finds no requirement for a summons in General Statues § 45a–186, as previously stated.   Second, the court notes that Practice Book § 8–1(a) exempts probate appeals from the mesne process requirements described therein.   Thus, there is no requirement that a plaintiff proceeding without counsel in a probate appeal obtain the signature of a clerk on a summons.   Further, the summons form used by the plaintiff included the location of the court, as did the complaint, making the alleged defect as described by the defendant merely a circumstantial error.

Third, the court agrees that the recognizance requirements of Practice Book § 8–4 apply to probate appeals, since “costs may be taxed in favor of the prevailing party” in such proceedings.  General Statutes § 45a–186c(a).   The plaintiff has filed a request to amend with an “amended summons” which includes a recognizance that complies with Practice Book § 8–4.   The question before the court then is whether it is permissible for the plaintiff to file a recognizance after filing of a motion to dismiss, but before the same has been acted upon by the court.   This court is of the opinion that defects in a probate court appeal that do not implicate subject matter jurisdiction, such as a missing recognizance, may be amended and cured after the filing of a motion to dismiss.   In Boyles v. Preston, 68 Conn.App. 596, 603–04, 792 A.2d 878, cert. denied, 261 Conn. 901, 802 A.2d 853 (2002), a tort case which discussed several claims of insufficiency of process, the Appellate Court declared as follows:

“General Statues § 52–123 provides that ‘[n]o writ, pleading, judgment or any kind of proceeding in court or court 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.’   Section 52–123 is used to provide relief from defects found in the text of the writ itself.  Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 434–35, 559 A.2d 1110 (1989).  ‘It is not the policy of our courts to interpret rules and statutes in so strict a manner as to deny a litigant the pursuit of its complaint for mere circumstantial defects ․ Indeed, § 52–123 of the General Statutes protects against just such consequences, by providing that no proceeding shall be abated for circumstantial errors so long as there is sufficient notice to the parties.’   (Citations omitted.)  Hartford National Bank & Trust Co. v. Tucker, 178 Conn. 472, 477–78, 423 A.2d 141 (1979) cert. denied, 445 U.S. 904, 100 S.Ct. 1079, 63 L.Ed.2d 319 (1980).   It is our expressed policy preference ‘to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court ․ The design of the rules of practice is both to facilitate business and to advance justice;  they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice ․ Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure.’  (Citations omitted;  internal quotation marks omitted.)   Coppola v. Coppola, 243 Conn. 657, 665, 707 A.2d 281 (1998).”

In Boyles, the defendant contested subject matter jurisdiction and personal jurisdiction over him on several grounds, including a defective recognizance.   Boyles v. Preston, 68 Conn.App. 601, n.1. While not specifically citing § 52–123 as authority, the Court noted that the trial court “allowed the plaintiff to file an amended recognizance to cure that particular defect and denied on the merits the defendant's motion to dismiss.”  Id. This court holds that a defective recognizance is a circumstantial defect which can be cured by an amendment filed after a motion to dismiss.

In the present case, the plaintiff has filed an amended summons that contains a recognizance in the form customarily used to comply with Practice Book § 8–4, and has therefore cured the lack of a recognizance in the earlier summons.   This conclusion is supported by the expressed policy of the court that no action should be abated for circumstantial defects, and further by the holding in Heussner v. Hayes, supra, 289 Conn. 807–08, that “[s]ection 45a–186 confers upon an aggrieved party an absolute right to appeal orders of the Probate Court to the Superior Court.”   This analysis also applies to the plaintiff's failure to provide recognizance under Practice Book § 8–3.   Taken together, this court holds that the plaintiff's amended summons and complaint are legally sufficient notice to the defendant of the commencement of this probate appeal.

This result is in accord with several recent cases, including Palmer v. Pawelczyk, Superior Court, judicial district of Fairfield, Docket No. CV–07–4022946–S (Nov. 3, 2008, Arnold, J.), and Gregoire v. Thompson Probate Court, Superior Court, judicial district of Windham, Docket No. CV–08–4008194–S (Mar. 3, 2006, Foley, J.) (47 Conn. L. Rptr. 329).   In Palmer, the court stated that “The statutory notice requirements are not essential to probate appeals ․ When the appeal is properly taken and allowed, the jurisdiction of the court attaches.   The court, however, will not proceed with the appeal until all appellees have had notice of the appeal.”  (Internal quotation marks omitted.)  Palmer v. Pawelczyk, supra, Superior Court, Docket No. CV–07–4022946–S.   Similarly, “[i]n Gregoire ․ the plaintiff filed a probate appeal but directed service to the defendant by registered or certified mail and failed to file a return of service with the court.   In holding that these failures did not deprive the court of subject matter jurisdiction, the [Gregoire] decision recognized that prior to the 2007 amendments [to § 45a–186] [a] defect in notice did not require the dismissal of the case, but rather the court would order that the defect be remedied before further proceeding and that there is nothing to indicate that the legislature intended, in enacting [the 2007 amendment], to deviate from the previous treatment of notice defects as non-jursdictional ․” (Internal quotation marks omitted.)   Godin v. Buchholz, Superior Court, judicial district of Hartford, Docket No. CV–10–6008745–S (Nov. 18, 2010, Wagner, J.T.R.) (50 Conn. L. Rptr. 882, 883–84).

This court applies the same reasoning and analysis to the defendant's claim that the return of service fails to comply with the requirement of General Statutes § 45a–186(c) that the return contain the “name, address and signature of the person making service.”   The return of service filed by the plaintiff includes the name, signature and identification of the signatory as a “State Marshal, Fairfield County.”   The court notes that the return indicates that it was signed in the “State of Connecticut, County of Fairfield” at Greenwich/Riverside.   The court further notes that the form used by the marshal in this case is the customary form used for virtually all returns of service.   Therefore, again viewed in light of the expressed judicial policy that no action should be abated for circumstantial errors or defects, the court finds that the failure of the Marshal to include her street or mailing address is a circumstantial defect only that does not defeat the plaintiff's cause of action.

In support of this holding, the court takes notice of § 45a–186(b), which provides in relevant part that “[t]he failure of any person to make such service shall not deprive the court of jurisdiction over the appeal ․” The defendants do not claim that they have not received notice of commencement of this action;  therefore, this court finds that subject matter jurisdiction attached to this probate appeal at the time of filing and, further, that the court has jurisdiction over the person of the defendant.

CONCLUSION

For the reasons set forth above, defendants' motion to dismiss, No. 102, is denied.

By the Court

Anthony D. Truglia, Jr.

Truglia, Anthony D., J.