James Lee v. Westport Probate Court (2013)

MEMORANDUM OF DECISION re MOTION TO DISMISS (# 117.00)

Nature of the Proceeding

This is a proceeding in the nature of a probate appeal.   The matter was commenced in 2010 (return date of April 20, 2010) and is scheduled for trial in January 2014.

Almost 3 1/2 years after the case was commenced, the appearing Christophersen defendants (Defendants Bonnie, Erik, and Erling Christophersen) moved to dismiss, claiming that the court lacks subject matter jurisdiction.   More specifically, the moving defendants claim that plaintiffs lack standing, and that the matter is moot.   They also articulate what appears to be a variation on the concept of “prior pending action” as a basis for dismissal.¹

The focus of the appeal from probate is plaintiffs' efforts to have the executrix of the estate of Lorna Christophersen removed, with the underlying motivation apparently being claimed debts owed to plaintiffs by decedent.   Defendants do not dispute that status as creditors with unresolved claims against the estate would provide standing to plaintiffs.

Defendants filed their motion in August 2013;  plaintiffs filed an objection (# 119.00), and defendants filed a reply (# 120.00).   Argument was heard by the court at short calendar on October 21, 2013.

Legal Standards

“A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ․ [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo ․ When a ․ court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint 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.

“It is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time ․ Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ․ [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction.”  Petrucelli v. Travelers Property Casualty Insurance Co., 146 Conn.App. 631, 639–40 (2013) (Citations and internal quotation marks, omitted).

“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.   Nevertheless, [s]tanding 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.   These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity.   Such a personal stake in the outcome of the controversy ․ provides the requisite assurance of concrete adverseness and diligent advocacy.   Standing [however] requires no more than a colorable claim of injury ․” Citibank v. Lindland, 310 Conn. 147, 161–62 (2013) (Internal quotation marks and citations, omitted).

“It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged ․” Ed Lally and Associates, Inc. v. DSBNC, LLC, 145 Conn.App. 718, 728 (2013)

The Record

Before addressing the merits of the motion before the court, it is appropriate to address the state of the record on which the court is acting.  Practice Book § 10–76 provides, in relevant part, that “[u]nless otherwise ordered, in all appeals from probate the appellant shall file reasons of appeal ․ and pleadings shall thereafter follow in analogy to civil actions ” (emphasis added).   Notwithstanding this language, no answer or any equivalent to an answer has been filed by any defendant.   As a result, the court cannot glean, from the record, the allegations of the appeal that are in issue and, conversely, which allegations are not being contested (or seriously contested).

Further, as referenced in the discussion of legal standards, the court starts with the record before it, in determining a motion to dismiss.   Parties may supplement the record by way of affidavit or other appropriate evidence (see, Practice Book § 10–31), and if necessary, the court may order an evidentiary hearing to resolve factual disputes relating to jurisdiction that cannot be resolved “on the papers” (see, e.g. Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56 (1983).   Instead, the parties' submissions relating to jurisdiction contain factual allegations without supporting affidavits or other evidentiary backup.

The court does note that attached to the substitute complaint (# 110.00) is a copy of the probate order from which this appeal is being taken;  attached to the memorandum in support of the motion to dismiss (# 118.00) is a copy of a second application for removal of executrix, filed by plaintiff Lee;  and attached to the reply (# 120.00) is an application filed by plaintiff O'Sullivan.²

Discussion

The arguments articulated by defendants in their initial brief in support of their motion are unpersuasive.   Defendants claim plaintiffs lack standing, a contention largely based on the expiration of the statute of limitations for contract actions.   See, pp. 2–4 of their memorandum in support of motion to dismiss, ultimately discussing and relying upon General Statutes § 52–576.

The fact that a claim may be subject to defenses (typically, a defense that must be affirmatively alleged) does not go to subject matter jurisdiction.   Defenses such as the statute of limitations must be alleged, and often are subject to exceptions and qualifications (which in turn should be alleged).   Standing goes to whether the party asserting a claim has a colorable claim, and the existence of likely defenses does not go to standing.   This is a variation on the observation in Gurliacci v. Mayer, 218 Conn. 531, 544–45 (1991), to the effect that the alleged inability to prove an element of a cause of action (there, a statutory requirement) does not affect jurisdiction, for otherwise courts would have to dismiss, retroactively, causes of action where a party is unable to prove such an element after a trial on the merits.   To the extent that defendants' two arguments in its motion somewhat blend into one (see footnote 1, above), both of those grounds for dismissal must be rejected.

Defendants' claim of mootness is actually a variation or alternate application of the principle rejected above.   The only difference between the mootness argument and the earlier argument is that the earlier argument focused on a potential contract claim by plaintiffs, whereas this argument rests upon a potential contract claim that could have been pursued by the decedent/estate.³  Again, the statute of limitations does not affect jurisdiction—if an action were to be pursued, it would have to be alleged affirmatively, and would/might be subject to exceptions or qualifications not apparent of record.   Accordingly, the arguments asserted in defendants' motion and initial brief do not form a basis for dismissal.⁴

Finally, to the extent that defendants are invoking by inference the prior pending action doctrine, i.e. that a subsequent probate application (attached to initial memorandum) warrants dismissal of the appeal from an earlier probate application, they do not explain why a second matter being filed can or should affect the ability of the court to adjudicate the earlier-filed matter.   With sufficient justification, there have been rare instances where a court has dismissed the earlier-filed matter, BCBS Goshen Realty, Inc. v. Planning & Zoning Commission, 22 Conn.App. 407, 409, 577 A.2d 1101 (1990), but defendants have made no attempt to articulate a rationale for application of this “non-standard” use of the prior pending action doctrine, here.   Nor do defendants attempt to explain or justify the theory that an application to an inferior (statutory) court affects the jurisdiction of a constitutional court, even if sitting as an appellate tribunal.

Ordinarily, the court's analysis would stop here, as arguments initially raised in a reply brief are highly disfavored.   However, given the preeminent status of subject matter jurisdiction, and the black letter law principle that subject matter jurisdiction must be addressed and resolved whenever raised, in whatever form or manner it is brought to the court's attention, and that the parties cannot confer subject matter jurisdiction on the court through agreement or neglect, the court believes it is obligated to consider the arguments set forth in defendants' reply brief.⁵

“[A] challenge to subject matter jurisdiction can be raised at any time.   [O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ․ and the court must fully resolve it before proceeding further with the case.”  (Citations and internal quotation marks omitted.)  Honan v. Dimyan, 85 Conn.App. 66, 69 (2004).

In their opposition papers, plaintiffs refer to the statutory procedures for claims against an estate, as set forth in General Statutes § 45a–353 et seq., and rely upon them to establish that the ordinary contract statute of limitations (§ 52–576) does not govern the perfection of a claim by plaintiffs against the estate.   Thus, plaintiffs argue:

If the fiduciary has not allowed, rejected or paid a claim within 90 days of its submission, the creditor may force the fiduciary to act. § 45a–360.   Thus, in a properly administered estate, the statute of limitations for a creditor is considerably abbreviated, but in an estate such as this one, the reverse is true:  the shortened statute has not started to run.   The plaintiffs' claims against the estate are not barred the applicable statute of limitations, and their standing is unimpaired.

Although plaintiffs do not elaborate on what they mean when they say that § 45a–360 allows “the creditor [to] force the fiduciary to act,” defendants' reply brief provides that explanation.   Section 45a–360(c) provides:

If the fiduciary fails to reject, allow or pay the claim within ninety days from the date that it was presented to the fiduciary as provided by section 45a–358, the claimant may give notice to the fiduciary to act upon the claim as provided by subsection (a) of this section.   If the fiduciary fails to reject, allow or pay the claim within thirty days from the date of such notice, the claim shall be deemed to have been rejected on the expiration of such thirty-day period.

Thus, under subsection (c), a creditor may “force the fiduciary to act” by giving “notice to the fiduciary to act upon the claim as provided by subsection (a) of this section.” ⁶  Once notice is given, the statute allows the fiduciary 30 days in which to act, and if there is no affirmative action, the claim is deemed denied.

At this point, the court feels compelled to refer back to the section of this memorandum addressing the record.   There is nothing before the court concerning the details (including timing) of any claim(s) submitted by plaintiffs against the estate.   The court does note that the probate order being appealed refers to plaintiff Lee as a creditor of the estate.   There is nothing in the complaint (or substitute complaint) concerning the response or lack of response from the executrix to any claim that may have been submitted.   There is nothing in the complaint or substitute complaint relating to any notice having been given to the executrix after the expiration of any timeframe.   In sum, there is nothing in the record before the court that would allow the court to decide whether any requirement or condition, as set forth in § 45a–360, has been satisfied and correspondingly, nothing in the record before the court would allow the court to decide whether any time limitation has expired so as to bar this or any other proceeding/claim.   Despite this dearth of record, the court will attempt to address the merits, to the extent feasible.  (The court is mindful that this case is scheduled for trial in the near future.)

The battle lines are relatively clearly drawn.   Plaintiffs, implicitly, argue that no notice was ever given such that the 30–day period in which the fiduciary would be required to act never began to run.   Defendants, on the other hand, explicitly claim that the actions of plaintiffs—especially commencement of these legal proceedings—constitute sufficient notice to trigger commencement of that 30–day period and since years have elapsed since the litigation was commenced, all time limits under § 45a–353 et seq. have long since expired.

Not unreasonably, defendants interpret plaintiffs' position as being the equivalent of a claim that the limitations period has been tolled, indefinitely (“in perpetuity”), pending action to be taken by plaintiffs, action which has not been taken over the last few years.   At first blush, that does appear to be something of an absurd scenario that the statute of limitations can be extended indefinitely.   Upon closer consideration, however, it is not so absurd, such that “in perpetuity” becomes only a modest form of hyperbole.

In Horelik v. Roth, 15 Conn.App. 649, 652 (1988), the court observed that the purpose of the predecessor statutory scheme for claims against an estate “is to provide for expeditious administration of estates by requiring claims to be made timely, not for avoiding claims.”   After a notice of claim is filed, the statute expects of the fiduciary to act upon the claim within a relatively short period of time.   However, there is no direct penalty or immediate consequence if the fiduciary does not act at all.

In such an instance (inaction by the fiduciary), § 45a–360(c) authorizes plaintiffs to file a notice, so as to force the hand of the executrix—after notice, upon expiration of the brief time allowed for a decision on the claim, the claim is deemed denied.   That statutory denial then permits plaintiffs to invoke the statutory remedies available to a claimant after denial of a claim.   However, there is nothing in the statutes that has prevented the executrix from acting on the claim(s) of plaintiffs even in the absence of a statutory notice—at any time over the years since the claims allegedly were submitted, the executrix could have denied them and forced plaintiffs to take action if they wished to continue to pursue their claims.   Thus, either party had (and has) the power to terminate the “in perpetuity” tolling of the limitations period, and the “absurdity” of an “in perpetuity” tolling evaporates.

The court is caught between the skeleton-like record and the need to give an answer to the jurisdictional challenge presented by the motion to dismiss.   Given the presumption in favor of jurisdiction, coupled with the allegations in the complaint, the court believes it is compelled to deny the motion based on the record before it.

Even if the court could rely upon the allegations set forth in the parties' submissions relating to the motion to dismiss, the result would be the same.   In their reply memorandum at page 2 (# 120.00), defendants state that by filing “an action in probate court to remove the fiduciary because of her alleged failure to pay their claims [ ․ ] the plaintiffs gave notice to the fiduciary of the action and the reasons therefore,” thereby satisfying the statutory requirement of notice.

Initially, the court is forced to note that there is no foundation for the allegation that the action to remove the fiduciary was premised on her alleged failure to pay plaintiffs' claims—¶ 6 of the complaint alleges a failure to file an inventory, failure to file a return and list of claims, and failure to file an estate tax return.   At best, the failure to pay the claims themselves would be secondary (or perhaps implied).   Elsewhere, there are explicit allegations that the reason for seeking removal was a conflict of interest (¶ 10 of substitute complaint;  # 110.00).⁷

More important, treating the application for removal as the equivalent of a notice under the statute relating to claims would not be consistent with the purpose of the notice provision.   Neither party has cited any authority with respect to the degree of formality or informality contemplated by the statutory notice in question.

Defendants posit one extreme, whereby any act related to the claim—even derivatively rather than directly—could be considered a notice sufficient to trigger the time limit set forth in § 45a–360(c).  The opposite extreme would be that a formal notice is required, e.g. one requiring formal language akin to “pursuant to General Statutes § 45a–360(c), [claimant] hereby gives notice ․”

Absent controlling authority being cited, the court is of the opinion that neither extreme represents the proper standard.   The apparent purpose of the notice is that it be a “reminder” to the fiduciary that there is a claim that has been presented, that needs attention.   Anything that directly prompts the administratrix in that fashion should be sufficient.   Defendants essentially are contending that constructive notice—and arguably tenuous constructive notice—is sufficient, under the statute.

There are a number of potential problems with the more-informal approach advanced by defendants.   First, their approach is somewhat at odds with the statute itself—the statute provides that the notice must direct the administrator to the need for action (“the claimant may give notice to the fiduciary to act upon the claim ” (emphasis added)).   Second, it easily becomes a trap for the unwary, with defendants' attempted use of a probate court filing for this purpose, as a prime example.   Third, if related to the previous point, reliance on overly-informal communications creates uncertainty as to when a statutory time period begins to run.   Here, defendants are trying to use the application to remove the executrix as triggering an unintended denial of the claims, claiming that the filing of a probate form started the 30–day clock running.   Less obviously, there might be situations where a claimant wants the claim to be deemed denied and by sending a seemingly innocuous letter tangentially related to the claim, triggers the running of the 30–day period for action.   Absent an implied requirement of clarity or directness, the notice provision would only foster collateral litigation concerning whether an ambiguous or indirect communication constitutes sufficient notice under the statute.

Keeping in mind the statutory purpose, as identified in Horelik, supra —that the purpose of § 45a–360 is to expedite resolution of claims on the merits—a moderate/intermediate approach is appropriate, one requiring clarity and directness.   Even in areas of law where there may be a well-developed body of case law relating to the detailed requirements of a notice, e.g. highway defects (General Statutes §§ 13a–144 and 13a–149), occasionally there is a recognition of the overarching purpose of a notice requirement.   A notice, after all, is intended to do just that—give notice to the recipient of the notice, of the intentions or desires of the party giving notice.   Thus, in Mills v. Commissioner of Transportation, 142 Conn.App. 785 (2013), there was a recognition that providing all of the detailed information required of a notice failed in its ultimate purpose, in the absence of a statement to the effect that the notice giver was intending to assert a claim against the recipient.   Here, by analogy, a notice under § 45a–360(c) fails to fulfill its purpose if it does not explicitly bring to the attention of the administratrix that there is a claim in need of action.

Conversely—and not to put undue emphasis on highway defect notice provisions—statutes requiring notice to be given have also been drafted in a manner addressing the use of a court filing as a form of notice (excusing separate notice).   Thus, the final sentence of § 13a–144, the state highway defect statute, excuses the requirement of separate notice if a lawsuit is commenced within the notice period which recites the required elements of statutory notice.   Conversely, a similar provision had existed in § 13a–149, the municipal highway defect statute, but was deleted in 1986, presumably indicating a legislative preference for separate notice.   In these highway defect statutes, the lawsuit-cum-notice covers precisely the same ground;  defendants here are claiming that a probate filing, somewhat related to but targeted at a distinct result, should suffice as notice, without any statutory language suggesting that that was within the contemplation of the General Assembly.

In sum, then, the court rejects the contention that an application to remove the executrix, based on claimed dereliction of responsibilities that included (arguably) disregard for pendency of claims, constituted notice under § 45a–360(c) relating to the need for specific action on a specific claim.⁸

Defendants also contend that an unrelated application, filed by plaintiff O'Sullivan, implicates the court's jurisdiction to consider the appeal from the denial of the first application.   According to defendants, this second application “affirms that her claim is for personal property rather than a financial debt.”   According to defendants, this establishes that the claim of plaintiff O'Sullivan is not that of a creditor (implicating standing), but rather that her claim is against the distributee of the personal property at issue.   While it is theoretically possible that defendants' contentions are correct, there is absolutely nothing in the record that would allow the court to infer—indeed, to use a legal oxymoron, it would not even be a matter of “reasonable speculation”—that such is the case.   There is nothing before the court that remotely suggests that this “third” application, attached to defendants' reply, in any way is related to the first application.   There is, however, ample reason to believe otherwise.   It is true that the application attached to the reply refers to a prior application, but there is no indication that that prior application was an application to remove the executrix.   More narrowly, the third application recites that with respect to “a prior motion dated November 12, 2008 ․ no order was made ” (emphasis added).   The court has no reason to accept defendants' implied assertion that the application that was denied and forms the basis of this appeal, is also the motion for which “no order was made.”   In their memorandum in support of motion for summary judgment (# 105.00), plaintiffs recited that the motion giving rise to this appeal was filed on February 13, 2009, suggesting that the dates do not match.   The application that was denied and forms the basis of this appeal was, according to the probate decision attached to the substitute complaint, filed by plaintiff Lee;  the third application, as attached to defendants' reply, was filed by plaintiff O'Sullivan.   Thus, it appears that the earlier application referenced in the third application covered different issues, was filed by a different applicant, and was filed on a different date;  and unlike the application at issue in this proceeding, was never acted upon.

Based on the record and inferences from the record, the application attached to the reply submission of defendants is irrelevant.   The fact that any claim for personal property may now be moot, based on subsequent events, also is irrelevant since the claim for personal property is not the basis for standing of plaintiffs to appeal the probate court's refusal to remove the executrix.   And again, defendants fail to explain how the probate court's denial of a second motion to remove the executrix renders moot an earlier similar motion, particularly in the absence of a record as to why the court so ruled.

The court also must note that defendants have not made any effort to demonstrate that the situation applicable to plaintiff O'Sullivan is different than the situation involving plaintiff Lee. To the contrary, in most instances, defendants are referring to them interchangeably or jointly.   Absent a basis to do so, the court will not look for distinctions that the parties themselves have not chosen to identify, instead of relying on the presumption of jurisdiction.  Ed Lally, supra.   For the foregoing reasons, defendants' motion to dismiss must be denied.

POVODATOR, J.

FOOTNOTES

FN1. “1) The Plaintiffs lack standing to bring this appeal;  2) The potential cause of action, identified as the basis for the removal of the executrix in this probate appeal, is beyond the statute of limitations thus rendering this probate appeal moot.   Additionally, the Plaintiffs have filed a new duplicate action in the same probate court from which this probate appeal is taken, seeking the same result for which this probate appeal was filed, thus causing two actions on the same subject matter to be operating concurrently in two different courts.”.  FN1. “1) The Plaintiffs lack standing to bring this appeal;  2) The potential cause of action, identified as the basis for the removal of the executrix in this probate appeal, is beyond the statute of limitations thus rendering this probate appeal moot.   Additionally, the Plaintiffs have filed a new duplicate action in the same probate court from which this probate appeal is taken, seeking the same result for which this probate appeal was filed, thus causing two actions on the same subject matter to be operating concurrently in two different courts.”

FN2. The court also has reviewed the submission of plaintiffs in connection with the motion for summary judgment, and despite the volume of documents attached, none appear to be germane to the issue at hand..  FN2. The court also has reviewed the submission of plaintiffs in connection with the motion for summary judgment, and despite the volume of documents attached, none appear to be germane to the issue at hand.

FN3. “The primary claim of the Plaintiffs is that the Executrix of Lorna Christophersen's estate should have pursued an alleged cause of action against Erling Christophersen ․”.  FN3. “The primary claim of the Plaintiffs is that the Executrix of Lorna Christophersen's estate should have pursued an alleged cause of action against Erling Christophersen ․”

FN4. The court further notes that while defendants “assume” that the claim plaintiffs believe the executrix should be pursuing is one based on contract, in at least one pleading, plaintiffs state that the claim that should be pursued by the executrix is one for unjust enrichment (p. 7 of memorandum in support of motion for summary judgment;  # 105.00).   Unjust enrichment is an equitable claim which would not be subject to any statutorily-defined time limit (statute of limitations) but presumably would be governed by laches..  FN4. The court further notes that while defendants “assume” that the claim plaintiffs believe the executrix should be pursuing is one based on contract, in at least one pleading, plaintiffs state that the claim that should be pursued by the executrix is one for unjust enrichment (p. 7 of memorandum in support of motion for summary judgment;  # 105.00).   Unjust enrichment is an equitable claim which would not be subject to any statutorily-defined time limit (statute of limitations) but presumably would be governed by laches.

FN5. To the extent that the arguments are in response to matters raised by plaintiffs in their brief in opposition to the motion, any concern about unfairness to an opposing party by virtue of an issue first raised in a reply brief is mitigated if not eliminated by this case-specific origin for the “new” issue(s) to be discussed, i.e. statutes identified in plaintiffs' opposition to the motion to dismiss..  FN5. To the extent that the arguments are in response to matters raised by plaintiffs in their brief in opposition to the motion, any concern about unfairness to an opposing party by virtue of an issue first raised in a reply brief is mitigated if not eliminated by this case-specific origin for the “new” issue(s) to be discussed, i.e. statutes identified in plaintiffs' opposition to the motion to dismiss.

FN6. Subsection (a) provides:  “The fiduciary shall:  (1) Give notice to a person presenting a claim of the rejection of all or any part of his claim, (2) give notice to any such claimant of the allowance of his claim, or (3) pay the claim.”.  FN6. Subsection (a) provides:  “The fiduciary shall:  (1) Give notice to a person presenting a claim of the rejection of all or any part of his claim, (2) give notice to any such claimant of the allowance of his claim, or (3) pay the claim.”

FN7. The court does not wish to put too much weight on it, but the allegations of ¶ 6 recite conduct without an explicit linkage to removal;  ¶ 10 specifically cites the conflict of interest as the basis for seeking removal..  FN7. The court does not wish to put too much weight on it, but the allegations of ¶ 6 recite conduct without an explicit linkage to removal;  ¶ 10 specifically cites the conflict of interest as the basis for seeking removal.

FN8. Again, the court must emphasize that the complaint, which is the starting point for the standing/subject matter jurisdictional analysis, asserts that conflict of interest was the basis for the filing of the relevant application in the probate court. (¶ 10 of # 110.00.).  FN8. Again, the court must emphasize that the complaint, which is the starting point for the standing/subject matter jurisdictional analysis, asserts that conflict of interest was the basis for the filing of the relevant application in the probate court. (¶ 10 of # 110.00.)

Povodator, Kenneth B., J.