John Sakon v. STJKBJ (2014)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS

BACKGROUND

This is an appeal from the Southington Probate Court's denial of the petitioner's application for an accounting.   The petitioner, John Sakon, who is self-represented, brings this action against his mother, Teresa Sakonchick, as trustee.¹

The respondent, Sakonchick, has filed a motion to dismiss for lack of subject matter jurisdiction.   The respondent asserts that the trust was terminated prior to the petitioner's application and that the trust was no longer an existing legal entity at the time this appeal was filed.   In opposition, the petitioner asserts that the respondent was incompetent at the time of the revocation and incapable of revoking the trust.²

The respondent has moved to dismiss claiming a lack of subject matter jurisdiction.  “Although the motion to dismiss speaks in terms of lack of subject matter jurisdiction, the defendant's arguments in support of the motion are more appropriate to a claim of lack of jurisdiction over the person, and the court will consider the arguments as to whether or not the court has personal jurisdiction over the defendant.”   Weitz v. Greenwich Police Dept., Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–04–0200464–S (January 10, 2005, Jennings, J.) [38 Conn. L. Rptr. 512] (holding that a court lacks personal jurisdiction over a defendant when the defendant is not a legal entity with the legal capacity to be sued).

“[O]nce the defendant contested personal jurisdiction ․ it was the plaintiff's burden to produce evidence adequate to establish such jurisdiction.”  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515–16, 923 A.2d 638 (2007).   In some cases, “[i]n order to sustain the plaintiff's burden, due process requires that a trial-like hearing be held, in which [the plaintiff] has an opportunity to present evidence and to cross-examine adverse witnesses, unless, as with summary judgment, no genuine issue as to a material fact exists.”  Kenny v. Banks, 289 Conn. 529, 533, 958 A.2d 750 (2008).

The court heard argument on November 25, 2013 on the motion to dismiss and continued the matter to January 27, 2014 for the limited purpose of allowing the petitioner to conduct discovery in support of his claim and to undertake an evidentiary hearing limited to the issue of the respondent's mental capacity at the time of the alleged revocation of the trust in accordance with our Supreme Court's decision in Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 459 A.2d 503 (1983).

At the hearing on January 22, 2014, the petitioner expressed frustration at what he considered to be obstructive tactics of the respondent's attorney in obtaining evidence of the respondent's lack of mental capacity, particularly in scheduling a deposition of the respondent.   Nevertheless, there is nothing before the court that evidences any attempts by the petitioner to obtain documentary evidence of the respondent's lack of mental competency by way of disclosure requests to the respondent or subpoena of the respondent's medical providers or medical records.   Conversely, the respondent offered no evidence of her own competence.   There is no indication that the respondent has been adjudicated an incompetent by the probate or superior courts.

Although the petitioner presented no documentary evidence, he did testify for well over an hour as to his own observations of the respondent's mental capacity prior to and at the time of the alleged revocation.   The court credits this testimony as establishing an issue of fact as to whether the respondent was competent at the time of the revocation.

LEGAL STANDARD OF REVIEW

“The standard of review for a court's decision on a motion to dismiss is well settled.   A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ․” (Internal quotation marks omitted.)  Gold v. Rowland, 296 Conn. 186, 200, 994 A.2d 106 (2010).

“[A] challenge to the jurisdiction of the court presents a question of law ․” Ryan v. Cerullo, 282 Conn. 109, 118, 918 A.2d 867 (2007).  “When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction.”   Standard Tallow Corp. v. Jowdy, supra, 190 Conn. 54.  “[A] determination of whether sufficient minimum contacts with Connecticut exist is a fact question ․ A motion to dismiss may ․ raise issues of fact and would, therefore, require a ․ hearing [to determine the facts] ․ [A]ffidavits are insufficient to determine the facts unless, like the summary judgment, they disclose that no genuine issue as to a material fact exists ․ When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.”  (Citations omitted;  internal quotation marks omitted.)  Id., 56.

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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 ․ In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․ other types of undisputed evidence ․ and/or public records of which judicial notice may be taken ․ the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ․ Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ․ If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ․ or other evidence, the trial court may dismiss the action without further proceedings ․ If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations ․ or only evidence that fails to call those allegations into question ․ the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein ․ Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts.”  (Citations omitted;  emphasis omitted;  footnote omitted;  internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 651–52, 974 A.2d 669 (2009).

ANALYSIS

This case presents a factual situation distinct from most motions to dismiss in which a claim of lack of mental capacity is raised by the movant.   In this matter, while the respondent has raised the issue of subject matter jurisdiction, it is the petitioner who is using the lack of mental capacity of the respondent as a defense to the motion to dismiss.  “By its very terms, an action at law implies the existence of legal parties;  they may be natural or artificial persons, but they must be entities which the law recognizes as competent.”  (Internal quotation marks omitted.)   Tchorzewska v. Tardiff, Superior Court, judicial district of New Britain, Docket No. CV–13–6020368–S (December 24, 2013, Young, J.).

The petitioner's claim is that the respondent had diminished mental capacity at the time of the revocation.   While the petitioner has provided no documentary evidence in support of his contention, he did testify at great length and provided many examples of the respondent's confused behavior and impaired memory which cumulatively raise an issue of the respondent's mental capacity at the time of the revocation.   The petitioner credibly testified that he was in daily contact with the respondent prior to and during her residency in assisted living and, therefore, was in a position to witness the degradation of her mental capacity.

As asserted by the petitioner, in the years prior to 2012, the respondent became incapable of using a cell phone, operating the television remote control, recalling the name of the president of the United States or the names of her grandchildren.   She frequently became lost while driving.   In 2010, the respondent sustained a blow to the head as the result of a fall, which accelerated her mental decline.³  Subsequently, the respondent was admitted to a locked advanced Alzheimer's wing at Mulberry Gardens in Southington, Connecticut.   During the summer of 2011, the respondent began to fail to recognize the petitioner, her own son, and her condition continued to deteriorate throughout the next year.⁴  The respondent revoked the trust on August 30, 2012.   Although the petitioner was cross examined about his testimony, the petitioner did not concede to the respondent attorney's assertions and the respondent has not provided any documentation or testimony countering or rebutting the petitioner's salient testimony.

It is not possible for the court to definitively determine whether the respondent had the requisite mental capacity to terminate the trust.   The burden of establishing the lack of mental capacity at trial remains with the petitioner.   However, the petitioner has presented uncontested evidence that the respondent lacked the requisite mental capacity at the time of the alleged revocation sufficient to allow the court to exercise personal jurisdiction.

CONCLUSION

The respondent's motion to dismiss the action is denied.

Robert E. Young, Judge

FOOTNOTES

FN1. The named defendant on the summons is “STJKBJ Investments Trust, M. Teresa Sakonchick, Trustee.”   In hand service of the writ, summons, and complaint was made upon M. Teresa Sakonchick.   The court views this action as being brought against the trustee, a legal entity, and not the trust, which is not a legal entity.   See Fountain Pointe, LLC v. Calpitano, 144 Conn.App. 624, 631 n.2, 76 A.3d 636, cert. denied, 310 Conn. 928, 78 A.3d 147 (2013)..  FN1. The named defendant on the summons is “STJKBJ Investments Trust, M. Teresa Sakonchick, Trustee.”   In hand service of the writ, summons, and complaint was made upon M. Teresa Sakonchick.   The court views this action as being brought against the trustee, a legal entity, and not the trust, which is not a legal entity.   See Fountain Pointe, LLC v. Calpitano, 144 Conn.App. 624, 631 n.2, 76 A.3d 636, cert. denied, 310 Conn. 928, 78 A.3d 147 (2013).

FN2. The petitioner also raises other defenses as well as claims against the respondent's attorney.   As the court denies the motion to dismiss on the basis of an issue of fact of competency, it does not address the petitioner's other defenses to the motion to dismiss..  FN2. The petitioner also raises other defenses as well as claims against the respondent's attorney.   As the court denies the motion to dismiss on the basis of an issue of fact of competency, it does not address the petitioner's other defenses to the motion to dismiss.

FN3. The petitioner, himself, was quite confused about dates.   During direct examination, he testified that these events took place in 2010.   On cross examination, he testified that the events occurred in 2011, but later testified that the fall took place in 2010.   Nevertheless, the events took place prior to the respondent's revocation of the trust..  FN3. The petitioner, himself, was quite confused about dates.   During direct examination, he testified that these events took place in 2010.   On cross examination, he testified that the events occurred in 2011, but later testified that the fall took place in 2010.   Nevertheless, the events took place prior to the respondent's revocation of the trust.

FN4. The petitioner provided other examples as well.   To be sure, the petitioner, himself, was confused about dates, testifying, for example, that the respondent had wandered from her home out into the elements during winter storm “Nemo,” leading to her admission to a hospital.   However, “Nemo” occurred in February 2013, long after the petitioner claims the respondent was admitted to the locked facility.   Despite this and other instances of confused testimony, the respondent's attorney did not rebut the petitioner's testimony as to the respondent's mental capacity and the court relies on the uncontroverted testimony of the petitioner to the extent that it raises an issue of fact..  FN4. The petitioner provided other examples as well.   To be sure, the petitioner, himself, was confused about dates, testifying, for example, that the respondent had wandered from her home out into the elements during winter storm “Nemo,” leading to her admission to a hospital.   However, “Nemo” occurred in February 2013, long after the petitioner claims the respondent was admitted to the locked facility.   Despite this and other instances of confused testimony, the respondent's attorney did not rebut the petitioner's testimony as to the respondent's mental capacity and the court relies on the uncontroverted testimony of the petitioner to the extent that it raises an issue of fact.

Young, Robert E., J.