Opinion
NNHCV186080403S
02-06-2019
Maria J. DERBLOM, Executrix of the Estate of Fred H. Rettich et al. v. ARCHDIOCESE OF HARTFORD aka The Hartford Roman Catholic Diocesan Corporation
UNPUBLISHED OPINION
File Date: February 5, 2019
PIERSON, J.
STATEMENT OF THE CASE
I
A
This action involves the disposition of a substantial testamentary bequest to a parochial school, Our Lady of Mercy School (OLM), which is now closed. The twenty-three named plaintiffs may be divided into three categories: (1) Maria J. Derblom, Executrix of the Estate of Fred H. Rettich (estate), whose decedent, Fred H. Rettich (decedent), made the subject bequest; (2) OLM students; and (3) the parents of OLM students.
According to the plaintiffs, on April 26, 2012, Derblom’s decedent, Fred H. Rettich, executed a Last Will & Testament (will), a copy of which is appended to their complaint. In Article Sixth of the will, the decedent disposed of residue of his estate, as follows: "All the rest, residue, and remainder of my property of every kind and description, real, personal and mixed, wherever situated (all of which is hereinafter referred to as "Residue"), remaining after the payment of estate, inheritance, succession, transfer and death taxes or duties, in accordance with Article VII hereof (but excluding any property over which I may have a power of appointment at my death), I give and bequeath, in memory of Fred H. & Rosa Rettich, to Our Lady of Mercy School, 149 Neck Road, Madison, Connecticut, or its successor, for its general uses and purposes." Further according to the plaintiffs, in or about 2004, some years prior to the execution of the will, OLM became an Archdiocesan school.
The plaintiffs allege that the decedent died on September 27, 2013. The original amount left to OLM under the will was $ 4, 745, 110.86.
The plaintiffs further allege that over four years later, on January 25, 2018, the defendant, Archdiocese of Hartford a/k/a The Hartford Roman Catholic Diocesan Corporation, announced that OLM would be closed and a new school would be formed in Branford, Connecticut, called the East Shoreline Catholic Academy (ESCA).
The defendant claims that it should be referred to as "The Hartford Roman Catholic Diocesan Corporation." Def. Memo., p. 1.
The plaintiffs allege that on February 18, 2018, the plaintiff, Our Lady of Mercy School of Madison, Inc. (OLMSMI) "was formed by certain concerned parents of students attending OLM to serve as a successor school with the intention of keeping the current mission and vision of OLM intact and fulfilling the wishes of Mr. Rettich of keeping a Catholic school in the Town of Madison." Based on the foregoing and other allegations, the plaintiffs bring claims seeking the imposition of a constructive trust (Counts One, Three, Five and Six), in breach of fiduciary duty (Counts Two and Four), and for a declaratory judgment (Count Seven).
"A constructive trust is a formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee ... The imposition of constructive trust by equity is a remedial device designed to prevent unjust enrichment. Thus, a constructive trust arises where a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it." (Citation omitted; internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 211 n.22, 994 A.2d 106 (2010).
On July 16, 2018, the defendant filed a motion to dismiss (Docket Entry No. 102), on the grounds that the plaintiffs "are all without standing to bring an action to enforce the terms of a completed charitable gift to a school." As a result, the defendant claims that the court has no subject matter jurisdiction over the plaintiffs’ claims. The plaintiffs filed an objection and opposition brief on September 14, 2018 (Docket Entry No. 105), to which the defendant replied on September 28, 2018 (Docket Entry No. 107). The plaintiffs filed a supplemental brief on October 19, 2018 (Docket Entry No. 110) and the matter was argued on October 22, 2018, on which date the motion and objection were submitted to the court for adjudication.
B
In connection with the defendant’s motion to dismiss and the plaintiffs’ opposition thereto, the parties submitted affidavits and other supporting documentation. According to the affidavits submitted by the defendant, OLM "was a jointly-sponsored mission of St. George’s parish in Guilford and St. Margaret’s parish in Madison." Aff. of. Rev. J. Shanley (Shanley Aff.), ¶ 5; accord Aff. of Rev. D. McLearen (McLearen Aff.), ¶ 5; Affidavit of C. Panzo (Panzo Aff.), ¶ 6. Its mission was to provide elementary and middle school students with an education "that was academically sound, morally responsible, and religiously based in the Roman Catholic faith." Id., ¶ 10. Although located in Madison, Connecticut, OLM attracted students from many surrounding towns. Id., ¶ 4.
The defendant’s submissions reflect that, in keeping with the provisions of the will, on July 8, 2015, the estate wrote a check to OLM in the amount of $ 4, 745, 110.86. According to the undisputed affidavits submitted by the defendants, the foregoing check "was deposited in an account established by St. George’s parish and St. Margaret’s parish in the name of OLM School." Shanley Aff., ¶ 8; McLearen Aff., ¶ 6.
Despite drawing students from surrounding towns, enrollment at OLM declined precipitously from 2013 to 2018, from 228 to 140, a decrease of 39%. Id., ¶¶ 4, 5. OLM was also facing other challenges. OLM was located on property that was leased to OLM and in 2016, OLM was informed that the lease would not be extended beyond the 2017-2018 academic year. McLearen Aff., ¶ 7. Although OLM attempted to purchase the property or obtain a long-term lease, these efforts were unsuccessful. Id., ¶¶ 8, 9. As a result, in January 2018, St. Margaret’s parish and St. George’s parish decided to consolidate OLM with St. Mary’s School in Branford (another Roman Catholic elementary and middle school) to form a new school, namely, ESCA, at the end of the 2017-2018 school year. Id., ¶ 10. St. Margaret, St. George, and St. John Bosco (the parish that previously sponsored and operated St. Mary School in Branford) jointly sponsor and operate ESCA. Id., ¶ 11. In addition, Cheryl Panzo, who served as OLM’s principal for two years, continued to serve as principal of ESCA when it opened in the fall of 2018, and many of the faculty members of OLM continued their service as faculty members at ESCA. Panzo Aff., ¶ 8. All of the students from OLM and St. Mary’s School have been invited to enroll at ESCA and will be given preference with respect to admission. Id., ¶ 9.
Further according to the defendant, OLMSMI "has no affiliation with OLM[ ], St. Margaret, St. George, or the Archdiocese of Hartford." Shanley Aff., ¶ 9; accord McLearen Aff., ¶ 14 (also averring that OLMSMI has no affiliation with St. John Bosco or ESCA). On April 23, 2018, the Archbishop of Hartford wrote a letter to the First Selectman of the Town of Madison, wherein he noted that ESCA "is the successor school of [OLM] and, as such, continues to be sponsored by the parishes in Guilford and Madison, now with the added sponsorship of the parish in Branford ... I do not intend to grant my consent or to recognize any other planned entity as a Catholic school in the area. Therefore, any ‘new OLM school’ is not, and should not present itself, as a Catholic school." Aff. of Rev. R. Lerner (Lerner Aff.), ¶ 4. According to the Archbishop, OLMSMI may not bear the title "Catholic school" without the consent of competent ecclesiastical authority.
While the plaintiffs do not contest most of the facts asserted by the defendant, they dispute the claim that ESCA is the successor to OLM. Thus, the plaintiffs contend that OLMSMI founded Our Lady of Mercy Preparatory Academy "to serve as the successor school" for OLM; Aff. of A. Knowles, ¶ 3; and the plaintiffs aver facts in purported support of the conclusion that OLMSMI is the successor to OLM as contemplated by the will. Id., ¶¶ 4-8.
II
"The construction of a will presents a question of law to be determined in light of facts which are found by the trial court or are undisputed or indisputable ..." (Citation omitted; internal quotation marks omitted.) Canaan National Bank v. Peters, 217 Conn. 330, 335, 586 A.2d 562 (1991). In order to resolve the jurisdictional issues raised by the defendant, the court must determine as a threshold matter whether under the will, the decedent’s residual estate constituted an unrestricted gift to OLM or its successor, or gave rise to a charitable trust benefitting OLM or its successor. This requires the court to construe Article Sixth of the will.
Under Connecticut law, a gift is defined as "the transfer of property without consideration." (Citation omitted; internal quotation marks omitted.) Kriedel v. Krampitz, 137 Conn. 532, 534, 79 A.2d 181 (1951). In making a gift a donor "must part with control of the property which is the subject of the gift with an intent that title shall pass immediately and irrevocably to the donee." (Citations omitted.) Id. Thus, a gift is characterized by the relinquishment of control by the donor together with an irrevocable transfer.
Given the foregoing, it is not surprising that "[there] is no such thing as a resulting trust with respect to a charity ... Where the donor has effectually passed out of himself all interest in the fund devoted to a charity, neither he nor those claiming under him have any standing in a court of equity as to its disposition and control." (Citations omitted; internal quotation marks omitted.) Carl J. Herzog Foundation, Inc. v. University of Bridgeport, 243 Conn. 1, 8, 699 A.2d 995 (1997). Thus, "[an] outright devisee or donation to a ... charitable institution, expressly or impliedly to be used for its general purposes, is charitable but does not create a trust ..." (Emphasis supplied.) Restatement (Third) of Trusts § 28, comm. a. (2003); see also Susan N. Gary, The Problems With Donor Intent: Interpretation, Enforcement, And Doing The Right Thing, 85 Chi.-KentL.Rev. 977, 998 (2010) ("The Restatement (Third) of Trusts states that an unrestricted gift to a charity organized as a nonprofit corporation does not create a charitable trust, ..." [citation omitted; footnote omitted]). "Gifts to religious and charitable corporations to aid in carrying out the purposes for which they are organized, whether by expending the principal of a bequest, or the income of a bequest to be invested in perpetuity, do not create a trust in any legal sense ..." (Citations omitted; internal quotation marks omitted.) Pierce v. Phelps, 75 Conn. 83, 86, 52 A. 612 (1902); accord Dwyer v. Leonard, 100 Conn. 513, 519, 124 A. 28 (1924).
A resulting trust is "a trust imposed by law when property is transferred under circumstances suggesting that the transferor did not intend for the transferee to have the beneficial interest in the property." (Citation omitted.) Episcopal Church in Diocese of Connecticut v. Gauss, Superior Court, Complex Litigation Docket, judicial district of Waterbury, Docket No. X06-08-4020456 S (March 15, 2010, Stevens, J.) , aff’d in part and dismissed in part, 302 Conn . 408, 28 A.3d 302 (2011). The related concept of implied trust arises by implication of law by the actions and conduct of the parties. Id. In this case, the circumstances do not suggest, in any way, that the decedent did not intend for OLM and its successor to have a beneficial interest in the gifted funds, for their general uses and purposes— to the contrary, the will expressly so provides.
By contrast, "[a] charitable trust is a fiduciary relationship with respect to property arising as a result of a manifestation of an intention to create it, and subjecting the person to whom the property is held to equitable duties to deal with the property for a charitable purpose." Restatement (Second) of Trusts § 348 (1959). Importantly, in order for a charitable trust to arise, there must be "a manifestation of an intention to create it ..." Id. (Emphasis supplied); Annot., 130 A.L.R. 1101 (1941) ("[With] respect to the nature of the estate created by a testamentary gift to a charitable, religious, or educational corporation for one or more of its corporate purposes, the intention to create or not create a trust has been persistently stated to be controlling to the determination of the question") (citations omitted). Under Connecticut law, "[any] charitable trust or use created in writing or by deed by any resident of the state, or any public or charitable trust or use for aiding and assisting any person or persons to be selected by the trustees of such trust or use to acquire education, shall forever remain to the uses and purposes to which it has been granted according to the true intent and meaning of the grantor and to no other use." General Statutes § 45a-514.
With the foregoing in mind, the court concludes that under the will, the residue of the decedent’s estate constituted a testamentary gift to OLM and did not create a charitable trust. To begin, the will is devoid of language expressly creating a trust. See, e.g., Lyme High School Ass’n v. Alling, 113 Conn. 200, 204, 154 A. 439 (1931) ("Nowhere in the will is there any provision that the gifts to the association shall be held by it in trust, nor any provision for the way in which they shall be managed and used, except certain conditions which she imposed. The gifts to it are therefore not trusts in the proper sense of the term, but are made directly to it to be held and used for its corporate purposes, except as limited by the conditions imposed in the will"). Moreover, in this case, "[there] is no requirement, express or implied, that the legacy shall constitute a fund of any kind, the income of which alone is to be used for the purpose indicated. Clearly, under the will, the [recipient] may expend the entire legacy in a year or a month or a week, in doing the duty thus laid upon it." Pierce v. Phelps, supra, 75 Conn. 85-86.
Certainly, under Connecticut law, a trust may be created, by a will without the use of the word "trust." See, e.g., O’Leary v. McGuinness, 140 Conn. 80, 84, 96 A.2d 660 (1953) (holding that a will leaving a portion of the estate to executors to be given to charities to be selected by them constituted a gift that created a trust "even though the word trust is not contained in it"); R. Folsom & L. Beck, Revocable Trusts and Trust Administration in Connecticut § 21:1 (2018 ed.) ("In order to create a valid charitable trust, it is not necessary that the word ‘trust’ be used in the instrument creating the trust"). Nevertheless, the will at issue does not contain other indicia of an intent to create a trust, including the establishment of a fund for particular purposes or any need for ongoing fiduciary administration or supervision. As noted above, the decedent’s will leaves the residue of his estate to OLM, or its successor, "for its general uses and purposes [, ]" without qualification. Will, Article Sixth. Such a testamentary donation does not create a trust. Restatement (Third) of Trusts § 28, comm. a. (2003); see also Pierce v. Phelps, supra, 75 Conn. 86 ("[The] mere fact that [the decedent] has designated the purpose for which his legacy must be used falls far short of indicating, under the circumstances, a desire and intent on his part to create a trust").
Having concluded that the will made a gift of the decedent’s residual estate to OLM, the court turns to the jurisdictional issues raised by the defendant.
DISCUSSION
I
A
Practice Book § 10-30(a) provides, in relevant part, that "[a] motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter ..." 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 ..." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). A motion to dismiss that challenges the court’s subject matter jurisdiction may be filed at any time during the pendency of the litigation. See Daley v. Hartford, 215 Conn. 14, 27-28, 574 A.2d 194 (1990) ("the question of subject matter jurisdiction, because it addresses the basic competency of the court, may be raised by any of the parties, or by the court sua sponte, at any time"); accord Lewis v. Gaming Policy Board, 224 Conn. 693, 698, 620 A.2d 780 (1993).
"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 ... [Once] 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.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 812, 967 A.2d 1 (2009). "A possible absence of subject matter jurisdiction must be addressed and decided whenever the issue is raised." (Internal quotation marks omitted.) Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996); see also Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 624-25, 822 A.2d 196 (2003) ("[o]nce the question of lack of [subject matter] 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 with the case" [citation omitted; internal quotation marks omitted]); Federal Deposit Ins. Corp. v. Peabody, NE., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996) ("[w]henever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one step further in the cause, as any movement is necessarily the exercise of jurisdiction"). "[J]urisdiction of the subject matter is a question of law and cannot be waived or conferred by consent ..." Simms v. Warden, 229 Conn. 178, 180, 640 A.2d 601 (1994).
As issues of justiciability implicate the subject matter jurisdiction of the court, they present a threshold question for judicial determination. See Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., supra, 290 Conn. 812 (issue of justiciability must be addressed first because it implicates court’s subject matter jurisdiction). "[J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court’s subject matter jurisdiction and its competency to adjudicate a particular matter." (Internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 536, 46 A.3d 102 (2012). By raising the standing of the plaintiff to maintain the present action, the defendants are challenging the subject matter jurisdiction of the court. Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009) ("[t]he issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss" [internal quotation marks omitted]); see also Christ-Janer v. A.F. Conte & Co., 8 Conn.App. 83, 90, 511 A.2d 1017 (1986) ([w]here a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause [of action]").
Finally, "[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 well settled that it 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.) Travelers Casualty & Surety Co. of America v. Netherlands Ins. Co., 312 Conn. 714, 729, 95 A.3d 1031 (2014); accord St. Paul Travelers Cos. v. Kuehl, 299 Conn. 800, 808, 12 A.3d 852 (2011), citing Ass’n Resources, Inc. v. Wall, 298 Conn. 154, 164, 2 A.3d 873 (2010). However, in determining whether a court has subject matter jurisdiction, "every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., supra, 294 Conn. 214.
B
"Standing 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." (Internal quotation marks omitted.) Carrubba v. Moskowitz, 274 Conn. 533, 550-51, 877 A.2d 773 (2005). "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 ... [Because] [s]tanding requires no more than a colorable claim of injury ... a [party] ordinarily establishes ... standing by allegations of injury [that he or she has suffered or is likely to suffer]. Similarly, standing exists to attempt to vindicate arguably protected interests." (Internal quotation marks omitted.) Travelers Casualty & Surety Co. of America v. Netherlands Ins. Co., supra, 312 Conn. 728. "[S]tanding is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved ... The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] ... Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ... has been adversely affected." (Internal quotation marks omitted.) Id., 312 Conn. 729. "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 and not whether the controversy is otherwise justiciable, or whether, on the merits, the [party] has a legally protected interest [that may be remedied]." (Internal quotation marks omitted.) Steeneck v. University of Bridgeport, 235 Conn. 572, 579, 668 A.2d 688 (1995).
C
" ‘Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to § 10-31(a)(1) may encounter different situations, depending on the status of the record in the case ... [L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts ... Different rules and procedures will apply, depending on the state of the record at the time the motion is filed.’ (Citation omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009).
" ‘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.’ (Internal quotation marks omitted.) Id., at 651, 974 A.2d 669. ‘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.’ (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., at 651-52, 974 A.2d 669." Mercaldo v. Exulans Corp., Superior Court, judicial district of New Haven at New Haven, Docket No. NNH-CV-12-6034237 S (July 15, 2015, B. Fischer, J.).
"A plaintiff, in presenting facts sufficient to establish a court’s jurisdiction, must present specific, and not simply conclusory, allegations." (Citations omitted.) Matthews v. SBA, Inc., 149 Conn.App. 513, 552, 89 A.3d 938 (2014).
II
A
General Statutes § 3-125, entitled, "Duties of Attorney General; deputy; assistants; associate attorneys general[, ]" provides that the attorney general "shall represent the public interest in the protection of any gifts, legacies or devises intended for public or charitable purposes." The foregoing language constitutes a legislative codification of the common-law rule. "Connecticut is among the majority of jurisdictions that have codified this common-law rule and has entrusted the attorney general with the responsibility and duty to represent the public interest in the protection of any gifts, legacies or devises intended for public or charitable purposes ..." (Citation omitted; internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 455, 804 A.2d 152 (2002). "Prior to the establishment of the office of the attorney general, ... the state’s attorneys for the various counties had common-law authority to enforce charitable trusts, gifts and devises." Id., 261 Conn. 444, citing Dailey v. New Haven, 60 Conn. 314, 325, 22 A. 945 (1891). "[Rather] than recognize any common-law authority of the attorney general to protect charitable gifts, we consistently have recognized— albeit at times sub silentio— that the common-law authority heretofore vested in the state’s attorneys; ... was codified and transferred to the office of the attorney general upon establishment of that office in 1897." (Citations omitted.) Id., 241 Conn. 455-56.
As stated by our Supreme Court," ‘[the] theory underlying the power of the [a]ttorney [g]eneral to enforce gifts for a stated purpose is that a donor who attaches conditions to his gift has a right to have his intention enforced.’ [Lefkowitz v. Lebensfeld, 68 A.D.2d 488, 495-96, 417 N.Y.S.2d 715 (1979) ]. The donor’s right, however, is enforceable only at the instance of the attorney general; Wier v. Howard Hughes Medical Institute, 407 A.2d 1051, 1057 (Del.Ch. 1979) (attorney general ‘has the exclusive power to bring actions to enforce charitable trusts’ [emphasis added]; Lopez v. Medford Community Center, Inc., 384 Mass. 163, 167, 424 N.E.2d 229 (1981) (common-law rule that ‘it is the exclusive function of the [a]ttorney [g]eneral to correct abuses in the administration of a public charity by the institution of proper proceedings’ [emphasis added]); ..." Carl J. Herzog Foundation, Inc. v. University of Bridgeport, supra, 243 Conn. 7.
This exclusivity, vested in the attorney general, is mirrored in the common-law view that other persons— including a donor or settlor— lack standing to enforce the terms of a gift or trust. As observed by our Appellate Court, "[a]t common law, a donor who has made a completed charitable contribution, whether as an absolute gift or in trust, had no standing to bring an action to enforce the terms of his or her gift or trust unless he or she had expressly reserved the right to do so ... At common law, it was established that [e]quity will afford protection to a donor to a charitable corporation in that the [a]ttorney [g]eneral may maintain a suit to compel the property to be held for the charitable purpose for which it was given to the [charitable] corporation ... [T]he donor himself has no standing to enforce the terms of his gift when he has not retained a specific right to control the property, such as a right of reverter, after relinquishing physical possession of it ... As a matter of common law, when a ... donor of property to a charity fails specifically to provide for a reservation of rights in the ... gift instrument, neither the donor nor his heirs have any standing in court in a proceeding to compel the proper execution of the trust, except as relators ... There is no such thing as a resulting trust with respect to a charity ... Where the donor has effectually passed out of himself all interest in the fund devoted to a charity, neither he nor those claiming under him have any standing in a court of equity as to its disposition and control." (Citations omitted; internal quotation marks omitted.) Russell v. Yale University, 54 Conn.App. 573, 577-78, 737 A.2d 941 (1999). Thus, Connecticut common law holds that "a donor [has] no standing to enforce the terms of a completed charitable gift unless the donor had expressly reserved a property interest in the gift." Carl J. Herzog Foundation, Inc. v. University of Bridgeport, supra, 243 Conn. 9.
At least with respect to charitable trusts, "[the] rationale for this rule is well established. In the absence of a limitation on standing to enforce charitable trusts, such trusts could be subject to lawsuits by any disgruntled member of the public." (Citation omitted.) Grabowski v. City of Bristol, Superior Court, Docket No. CV-95-0468889 S (June 3, 1997, Holzberg, J.) (19 Conn.L.Rptr. 623); see also Olesky v. Sisters of Mercy of Lansing, 74 Mich.App. 374, 253 N.W.2d 772, 774 (1977) ("A majority of states follow this principle, using the rationale that litigation by private citizens would be vexatious and burdensome ... Accordingly, we find that Michigan public policy also requires that the Attorney General have exclusive authority to enforce charitable trusts" [citations omitted]). This reasoning is similarly applicable to testamentary gifts. As a result, and absent some pertinent exception, the attorney general has exclusive power to enforce the gift of the decedent’s residual estate to OLM.
As reflected in their filings, the plaintiffs acknowledge the enforcement role of the attorney general under our law. For example, appended to the plaintiffs’ opposition brief is the affidavit of the plaintiffs’ counsel which reads, in part: "[Prior] to filing suit, I contacted the Office of the Attorney General of the State of Connecticut ... and formally requested they join us in our suit against the Archdiocese of Hartford. To date, the Office of the Attorney General of the State of Connecticut has not taken any action on my request." Aff. of D. Coric, ¶ 3. Further according to the plaintiffs’ counsel, "with time being of the essence, my only option was to file suit without the Office of the Attorney General of the State of Connecticut." Id., ¶ 4.
B
The plaintiffs do not dispute the foregoing authorities. Rather, the plaintiffs claim that the "special interest" exception to the general rule of exclusivity is applicable here. Pl. Memo., p. 8 ("Standing is conferred on [the plaintiffs] via the special interest exception"). In advancing this argument, the plaintiffs rely on Grabowski v. City of Bristol, 64 Conn.App. 448, 780 A.2d 953 (2001). In Grabowski, our Appellate Court affirmed a decision of the trial court, which held, in part, as follows: "The rule conferring jurisdiction on the Attorney General to enforce charitable trusts is not absolute, ... Commentators and Connecticut case law recognize a ‘special interest’ exception to the Attorney General’s enforcement powers. ‘Beneficiaries with a sufficient special interest in the enforcement of a charitable trust can initiate a suit as to that trust.’ Steeneck v. University of Bridgeport, supra, 235 Conn. 588 (citing Jones v. Grant, 344 So.2d 1210, 1212 (Ala. 1977)). In order to maintain such an action, the plaintiff must plead sufficient facts to demonstrate that he is ‘entitled to receive a benefit under the trust that is not merely the benefit to which members of the public in general are entitled.’" 4 Scott, The Law of Trusts § 391.
"A series of Connecticut cases [has] approved, either explicitly, or by implication, the ‘special interest’ exception to the general rule prohibiting enforcement actions by plaintiffs other than the Attorney General. Our Supreme Court, citing cases from other jurisdictions that permitted standing under the ‘special interest’ theory, recently assumed, without deciding, that the special interest exception may authorize persons other than the Attorney General to file suit to enforce the terms of a charitable trust. See Steeneck v. University of Bridgeport, supra, 235 Conn. 588. Likewise, in Herzog Foundation, Inc. v. University of Bridgeport, supra, 41 Conn.App. 790, 677 A.2d 1378 [1996], the Appellate Court stated expressly that [o]thers [beside the attorney general] may ... have standing to enforce charitable trust provisions, such as trustees, donors of gifts and heirs and executors of wills, which standing includes the right to bring actions to intervene or to intervene in actions brought to enforce the provisions of trusts or wills.’ In Belcher v. Conway, 179 Conn. 198, 425 A.2d 1254 (1979), the Court permitted intervention by minority co-trustees, as party plaintiffs, for purposes of opposing a modification of the original trust’s terms being sought by the majority of co-trustees. It stated that ‘the court may permit the intervention of those not named as parties to the action who are found to have a proper interest in the outcome of the litigation ...’ Id. 206, 425 A.2d 1254. See also Day v. City of Hartford, 16 Conn.Supp. 228 (1949) (authorizing suit by ‘citizens, residents and taxpayers of the City of Hartford’ who alleged pecuniary and other interests in two bridges that had been given to Hartford by way of a trust, for the purpose of preventing the bridges’ destruction)." Grabowski v. City of Bristol, supra, Docket No. CV-95-0468889 S (June 3, 1997, Holzberg, J.) .
Rev’d, Carl J. Herzog Foundation, Inc. v. University of Bridgeport, supra, 243 Conn. 1.
The resolution of the defendant’s motion turns on whether the "special interest" exception applies here. For the reasons that follow, the court concludes that the exception is inapplicable.
To begin, and as pointed out by the defendant, the "special interest" exception has been applied only to charitable trusts, not gifts. In urging this court to apply the exception to the facts of this case, the plaintiffs rely largely on cases involving charitable trusts, not testamentary gifts such as the one at issue here. For example, the case of Grabowski v. City of Bristol, supra, arose "out of a testamentary charitable trust that conveyed a designated parcel of property to the city of Bristol." (Emphasis supplied.) 64 Conn.App. 449. Moreover, most of the cases discussed by the trial court in Grabowski involved charitable trusts, not gifts. Grabowski v. City of Bristol, supra, Docket No. CV-95-0468889 S (June 3, 1997, Holzberg, J.), citing Steenek v. University of Bridgeport, supra, 235 Conn. 586-89 (involving claim that principles of trust law applicable to charitable trusts should be extended to charitable corporations); Belcher v. Conway, supra, 179 Conn. 198 (involving a charitable trust created by will); Day v. City of Hartford, 16 Conn.Supp. 228 (1949) (as described by the trial court in Grabowski, involving a gift of two bridges that had been given to Hartford "by way of a trust"); Kapiolani Park Preservation Society v. City and County of Honolulu, 69 Haw. 569, 751 P.2d 1022, 1026 (1988) (involving a park that was "a public charitable trust"); Pele Defense Fund v. Paty, 73 Haw. 578, 837 P.2d 1247, 1253 (1992) (involving a trust created under § 5(f) of the Hawaii Admission Act and article XII, § 4 of the Hawaii Constitution); and Matter of Hill, 509 N.W.2d 168 (Minn.App. 1993) (involving a charitable trust). Thus, the legal authorities on which the plaintiffs rely in urging the court to apply the "special interest" exception are manifestly distinguishable from the law of standing as it has been applied to gifts.
One case that was discussed by the trial court in Grabowski which involved a gift, not a trust, was Herzog Foundation, Inc. v. City of Bridgeport, supra, 41 Conn.App. 790, a decision reversed by our Supreme Court in Carl J. Herzog Foundation, Inc. v. University of Bridgeport, supra, 243 Conn. 1. In reversing the Appellate Court, the Supreme Court concluded that a donor lacked standing to enforce the terms of an unreserved restriction in a completed charitable gift. Id., 243 Conn. 16.
In the absence of controlling authority recognizing the application of the "special interest" exception to gifts, this court declines to enlarge the scope of the exception as it has been discussed by our courts. Moreover, disallowing the application of the "special interest" exception to unreserved gifts, such as the one at issue here, is appropriate because the distinction between a charitable trust and gift is of significance to the issue of standing. As previously observed, a gift is characterized by the relinquishment of control of the property transferred, coupled with an immediate and irrevocable transfer to the donee. Kriedel v. Krampitz, supra, 137 Conn. 534. By this action, the plaintiffs seek to exercise control over the decedent’s gift and revoke its transfer. Conferring standing on the plaintiffs to pursue claims for constructive trust, breach of fiduciary duty, and a declaratory judgment would be wholly inconsistent with the characteristics of a gift. The court concludes that, in this case, and in keeping with the well-established general rule, the attorney general of the State of Connecticut has the exclusive power to enforce the testamentary gift at issue.
As the issue is not presented here, the court does not address the question of whether the "special interest" exception should be extended to gift instruments reflecting a reservation of rights by the donor.
ii
Furthermore, even if the "special interest" exception applied to this case, the plaintiffs have failed to demonstrate— as is their burden in opposing a motion to dismiss— that they have a special interest in the decedent’s residual gift sufficient to confer standing upon them to pursue their claims. The plaintiff Derblom, as executrix of the estate, has not demonstrated a special interest in a completed gift made by the estate. The will did not reserve any rights in the donor with respect to the gift, nor did it create a charitable trust of which the executrix was made trustee. Moreover, and as noted previously, a gift is characterized by a surrender of control and an irrevocable transfer. To recognize a "special interest" in such a gift on the part of the executrix of an estate would be inconsistent with the essential characteristics of the gift itself.
With respect to the OLM students, the United States Supreme Court observed 200 years ago, in the storied case of Trustees of Dartmouth College v. Woodward, 17 U.S. 518, 641, 4 L.Ed. 629, 4 Wheat. 518 (1819), that "students are fluctuating, and no individual among our youth has a vested interest in [a private educational] institution, which can be asserted in a court of justice." The same can be said of the OLM parents. Moreover, as students and parents of students, the plaintiffs here stand in contrast to the plaintiffs in Grabowski who, unlike members of the general public, owned property adjoining the park that was the subject of a testamentary charitable trust. The OLM students and parents do not have a property interest that has been affected by the underlying conduct at issue and they have not demonstrated a "special interest" warranting application of the exception to the general rule.
Finally, OLMSMI has not demonstrated that it has a "special interest" sufficient to confer standing. OLMSMI’s claim to a "special interest" is based on its contention that it is the successor institution to OLM as set forth in Article Sixth of the will. "Successor" is defined as "1. Someone who succeeds to the office, rights, responsibilities, or place of another; one who replaces or follows a predecessor. 2. A corporation that, through amalgamation, consolidation, or other assumption of interests, is vested with the rights and duties of an earlier corporation." Black’s Law Dictionary (10th ed. 2014).
OLMSMI’s claim to successor status is belied, inter alia, by the fact that it claims to be the successor of OLM, which became "an Archdiocesan school in or around 2004"; Complaint, Introduction, ¶ 3; approximately eight years prior to the execution of the will and nine years prior to the decedent’s death. It is undisputed that the Archbishop of Hartford does not recognize OLMSMI as a successor to OLM and, in fact, does not recognize OLMSMI or the school founded by OLMSMI as a Catholic school. Given this, and the fact that OLM was consolidated with other schools to form a new educational institution (ESCA) as successor, OLMSMI has not demonstrated a special interest sufficient to confer standing upon it to maintain its claims.
CONCLUSION
For the foregoing reasons, the defendant’s motion to dismiss is granted.