Opinion
No. CV06-402 06 32S.
November 20, 2006.
MEMORANDUM OF DECISION
Before the court is the defendants' motion to dismiss this probate appeal on the ground that failure to file reasons of appeal deprives the court of subject matter jurisdiction.
On May 24, 2006, the plaintiffs, Raymond Celmer and Donald Celmer, filed a probate appeal with this court, with a return date of July 11, 2006. On July 27, 2006, the defendants, John Celmer, Jr., and Patricia Pleckaitis, filed a motion to dismiss the probate appeal on the ground that this court lacks subject matter jurisdiction because the plaintiffs failed to file reasons of appeal as required by Practice Book § 10-76. On August 24, 2006, the plaintiffs filed a memorandum of law in opposition to the defendant's motion to dismiss and requested leave of this court to file reasons of appeal.
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy . . . [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." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). "The burden rests with 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.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004).
The defendants argue that the plaintiffs' failure to file reasons of appeal within ten days of the return date, as required by Practice Book § 10-76, deprives the court of subject matter jurisdiction. They appear to argue that the filing requirement in Practice Book § 10-76(a) should be construed as mandatory because of the use of the word "shall." The plaintiffs maintain that failure to file reasons of appeal does not deprive the court of subject matter jurisdiction.
Practice Book § 10-76(a) provides: "Unless otherwise ordered, in all appeals from probate the appellant shall file reasons of appeal, which upon motion shall be made reasonably specific, within ten days after the return day; and pleadings shall thereafter follow in analogy to civil actions." As the Appellate Courts of this state have not yet addressed the issue of whether the requirements of § 10-76(a) are mandatory or directory, it is necessary for this court to interpret the rule. For the reasons discussed below, this court believes that the filing requirement should be viewed as directory rather than mandatory.
"At the outset it must be recognized that the issue involves a Practice Book rule promulgated by the judges of the Superior Court, and not a statute. The rules of statutory construction, however, are clearly applicable." State v. Cook, 183 Conn. 520, 521, 441 A.2d 41 (1961). "The rules of statutory construction apply with equal force to Practice Book rules." (Internal quotation marks omitted.) Pitchell v. City of Hartford, 247 Conn. 422, 432, 722 A.2d 797 (1999).
In construing statutes, the Connecticut Supreme Court has noted that "the word `shall' is not dispositive on the issue of whether a statute is mandatory." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 22, 848 A.2d 418 (2004). "[T]he use of the word shall, though significant, does not invariably establish a mandatory duty . . . Furthermore, a requirement stated in affirmative terms unaccompanied by negative words, as in the present case, generally is not viewed as mandatory." (Citation omitted; internal quotation marks omitted.) Teresa T. v. Ragaglia, 272 Conn. 734, 744, 665 A.2d 428 (2005).
"The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory . . ." (Internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 19. "That test must be applied with reference to the purpose of the statute." (Internal quotation marks omitted.) Sears, Roebuck Co. v. Board of Tax Review, 241 Conn. 749, 760, 699 A.2d 81 (1997). "A statute of limitations is generally considered to be procedural, especially where the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action . . . [W]here a statute gives a right of action which did not exist at common law, [however] . . . the time limitation is a substantive and jurisdictional prerequisite . . ." (Citations omitted; internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., supra, 22-23.
Practice Book § 10-76(a) does not itself create a right of appeal from probate, since "the right to appeal from the decision of a Probate Court is statutorily conferred by [General Statutes § 45a-186] . . ." Baskin's Appeal from Probate, 194 Conn. 635, 637, 484 A.2d 934 (1984). Section 10-76(a) merely sets forth the time period within which an appellant should file reasons of appeal. "Reasons of appeal . . . are filed after the appeal has been taken and serve to provide notice of the issues in dispute." Abbot v. Amellin, Superior Court, judicial district of New Haven, Docket No. CV 04 4004965 (May 25, 2005, Lopez, J.) ( 39 Conn. L. Rptr. 510, 511). Accordingly, in light of the purpose and function of § 10-76(a), the filing of reasons of appeal is procedural or directory rather than substantive or mandatory.
General Statutes § 45a-186(a) provides in relevant part: "Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the Superior Court in accordance with subsection (b) of this section."
Indeed, failure to file reasons of appeal has not been fatal as to deprive the Superior Court of subject matter jurisdiction in any reported case in Connecticut. In Nickerson v. Griffing, 139 Conn. 720, 726, 97 A.2d 559 (1953), our Supreme Court noted that, where "no reasons of appeal had been filed, the court was compelled to resort to the motion for appeal, supplemented by the evidence presented on the trial, to determine just what were the issues of fact involved in the case." Likewise, in Rockwell's Appeal, 54 Conn. 119, 120, 6 A. 198 (1886), the Supreme Court noted that "[n]o reasons of appeal were filed in the Superior Court, so that the case stood and was tried upon the statutory issue . . ."
Accordingly, the untimeliness in filing reasons of appeal does not deprive a party of the right to appeal from probate. "Depriving an aggrieved party of his/her right of appeal because of the untimely filing of a pleading would . . . elevate form over substance." Abbot v. Amellin, supra, 39 Conn. L. Rptr. 511. "Proceedings in Probate Court are less formal than in the ordinary actions subject to the original jurisdiction of the Superior Court . . . Generally speaking, the technical rules of pleading do not apply to the formation and determination of issues in appeals from probate to this court." (Citation omitted.) Barlow v. Pocsay, 21 Conn.Sup. 352, 354, CT Page 21584 154 A.2d 754 (1959). "Even under the generally more strict procedural requirements of the ordinary civil action, a pleading may be filed after the expiration of the time fixed by statute or by any rule of court until the court has heard any motion for judgment by default or nonsuit for failure to plead . . ." (Internal quotation marks omitted.) Barlow v. Pocsay, supra, 21 Conn.Sup. 354-55.
The defendants further argue that failure to file reasons of appeal is analogous to filing a summons without a complaint and such failure is fatal. Such analogy is inapposite, however, because the rules of practice in a probate appeal are fundamentally different from those in a civil action. "An appeal from a Probate court to the Superior Court is not an ordinary civil action . . . When entertaining an appeal from an order or decree of a Probate court, the Superior Court takes the place of and sits as the court of probate." (Citations omitted.) Kerin v. Stangle, 209 Conn. 260, 263-64, 550 A.2d 1069 (1988). "The phrase `in analogy to civil actions' [in Practice Book § 10-76(a)] expresses the proper status of an appeal from probate, as a special proceeding authorized by statute, but not a civil action." Slattery v. Woodin, 90 Conn. 48, 51, 96 A. 178 (1915).
Although the defendants concede that our trial courts have consistently decided that untimeliness in filing reasons of appeal does not deprive the court of jurisdiction, they argue that "those decisions result from a misinterpretation" of footnote nine in Baskin's Appeal from Probate, supra, 194 Conn. 641. They argue that, unlike the plaintiffs in the present case and in other trial court cases interpreting Baskin's Appeal, the plaintiff in Baskin's Appeal had timely filed reasons of appeal when the motion to dismiss was filed. This court is of the opinion, however, that those trial court decisions are consistent with the position of the Supreme Court in Baskin's Appeal.
See, e.g., Abbot v. Amellin, supra, 39 Conn. L. Rptr. 510; Burlingame v. Abbe, Superior Court, judicial district of Windham, Docket No. CV 04 0072307 (September 8, 2004, Foley, J.); Torrance v. Torrance, Superior Court, judicial district of New Britain, Docket No. CV 03 0520882 (October 26, 2003, Robinson, J.) ( 35 Conn. L. Rptr. 681); Barlow v. Pocsay, 21 Conn.Sup. 352, 154 A.2d 754 (1959).
Footnote 9 in Baskin's Appeal from Probate, supra, 194 Conn. 641 n. 9, states: "The different functions served by a motion to dismiss and a motion to strike are complicated by the distinction that must be made between the motion to appeal filed in the Probate Court and the reasons of appeal filed in the Superior Court. In this case, the Superior Court held the motion inadequate because as a matter of law no sufficient reasons could be advanced to support the plaintiff's claim for relief. We hold the motion adequate because as a matter of law sufficient reasons can be pleaded to support the motion. The plaintiff's failure to state such reasons might in some instances render his appeal subject to being struck, but dismissal is not proper unless it is undisputed as a question of fact that such reasons do not exist. The Superior Court is authorized, and in some situations required, to make that factual inquiry Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983); see also Practice Book § 143."
In Baskin's Appeal from Probate, supra, 194 Conn. 635, the Supreme Court set aside the trial court's decision that had granted the defendant's motion to dismiss the probate appeal for lack of subject matter jurisdiction because, although the plaintiff had filed reasons of appeal, they had failed to allege that the plaintiff had been aggrieved by the probate court order. The court held that a motion to dismiss should not have been granted when the pleadings could have been amended to state a cause of action because the dismissal would deprive the plaintiff of "any opportunity to amend the reasons of appeal to plead additional facts." Id., 641. In that context, the Supreme Court noted that "[t]he plaintiff's failure to state [sufficient] reasons [to support a motion to appeal] might in some instances render his appeal subject to being struck, but dismissal is not proper unless it is undisputed as a question of fact that such reasons do not exist." Id., 641 n. 9. Subsequently, courts have adopted this statement as a test to determine whether they should grant a motion to dismiss a probate appeal for failure to file reasons of appeal. See, e.g., In re Logan S., Superior Court, judicial district of Tolland, Juvenile Matters at Rockville, Docket No. Redacted (August 18, 2005, Graziani, J.) ( 39 Conn. L. Rptr. 833) (quoting the same statement); Abbot v. Amellin, supra, 39 Conn. L. Rptr. 510 (denying motion to dismiss because it was not undisputed that reasons of appeal do not exist).
In deciding that failure to file reasons of appeal does not implicate subject matter jurisdiction, lower courts have properly applied the holding in Baskin's Appeal, supra, 194 Conn. 640-43, that dismissal is not proper unless there is no dispute that reasons of appeal do not exist. The court in Baskin's Appeal, supra, 194 Conn. 640-43, held that an appeal from probate should not be dismissed when sufficient reasons can be pleaded in later proceedings, but a probate appeal may be dismissed if it is undisputed that no reasons of appeal exist. Hence, lower courts have held that failure to file reasons of appeal does not deprive them of subject matter jurisdiction unless there is no dispute that no reasons of appeal exist. Although the court in Baskin's Appeal did not specifically address the jurisdictional implication of a party's failure to file reasons of appeal, its holding implies that such a failure ordinarily would not deprive the court of subject matter jurisdiction.
In the present case, the plaintiffs failed to file reasons of appeal within ten days after the return date, as required by Practice Book § 10-76. The plaintiffs' failure to file reasons of appeal alone, however, does not establish that the motion for appeal can never be factually supported. Moreover, at this point, the plaintiffs have requested permission to file reasons of appeal and have attached reasons of appeal to their request. Consequently, the defendants have not established that reasons of appeal do not exist. Accordingly, the motion to dismiss is denied.
For the foregoing reasons, the defendants' motion to dismiss the plaintiffs' probate appeal is denied because failure to file reasons of appeal within ten days after return date does not deprive this court of subject matter jurisdiction.