Opinion
No. CV02-0171530S
May 14, 2003
MEMORANDUM OF DECISION
This appeal, along with two previously decided cases, arises from the decision of the Southbury Probate Court's order and decree removing the appellant as trustee of the F. Stark Newberry Marital and Residual Trusts. The facts are as follows. F. Stark Newberry, the Testator, provided for Marital and Residual Trusts under articles Tenth and Eleventh of his Will. Net income from the trusts is payable to or for the benefit of the Testator's spouse, and upon her death, assets are to be paid outright in equal shares to the three children of the testator and his spouse or to the children of any deceased child. Under the Will, the spouse and the three children were named as Trustees. Under a Codicil, the testator nominated the Colonial Bank and Trust Company as the sole Trustee. By virtue of several mergers and corporate re-organizations, Fleet Bank became the successor Trustee. The beneficiaries requested Fleet Bank to resign as Trustee, and Fleet Bank declined. The beneficiaries thereafter petitioned the Probate Court to remove Fleet Bank as Trustee of the two captioned trusts and for the appointment of Webster Bank as successor Trustee pursuant to the provisions of Connecticut General Statutes § 45a-242 (a) as amended by Public Act 01-114. The Probate Court found by "clear and convincing" evidence that the requested change was in the best interests of the beneficiaries, was not inconsistent with the material purpose of the trust, and that a suitable successor was available. Fleet Bank appealed claiming that the Southbury Probate Court abused its discretion in removing it and appointing Webster Bank in its place.
The beneficiaries of the trusts were made parties defendant pursuant to their own motion. Thereafter, they moved to dismiss the appeals on jurisdictional grounds. Specifically, the beneficiaries claim that the appellant Fleet Bank is not aggrieved by the Probate Court order appealed from; nor is there a right of appeal provided by law for a trustee which has been removed pursuant to § 42a-242 (a) (4) of the Connecticut General Statutes.
DISCUSSION
"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.) Adolphson v. Weinstein, 66 Conn. App. 591, 594, 785 A.2d 275 (2001), cert. denied, 259 Conn. 921, 792 A.2d 853 (2002); see also Practice Book § 10-31(a) (1). A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide. See Castro v. Viera, 207 Conn. 420, 429, 541 A.2d 1216 (1988). Our Supreme Court has determined that when "ruling upon whether a complaint survives a motion to dismiss, 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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . ." Bailey v. Medical Examining Board for S.E.D.R., 75 Conn. App. 215, 219 (2003) (internal quotation marks omitted).
As recently noted by the Appellate Court, the "right to appeal from the decision of a Probate Court is statutorily conferred by [General Statutes § 45a-186], and the absence of aggrievement, as required by that statute, is a defect that deprives the Superior Court of jurisdiction to entertain the appeal." (Citations omitted.) Adolphson v. Weinstein, 66 Conn. App. 591, 595 (2001). General Statutes § 45a-186 (a) provides: "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."
Fleet Bank brings this appeal under § 45a-186, claiming that it is aggrieved by the order and decree of the Probate Court because it has been improperly removed pursuant to Connecticut General Statues § 45a-242 (a) (4). Section 45a-242 (a) provides:
The court of probate having jurisdiction may, upon its own motion or upon the application and complaint of any person interested or of the surety upon the fiduciary's probate bond, after notice and hearing, remove any fiduciary if: (1) The fiduciary becomes incapable of executing such fiduciary's trust, neglects to perform the duties of such fiduciary's trust, wastes the estate in such fiduciary's charge, or fails to furnish any additional or substitute probate bond ordered by the court, (2) lack of cooperation among co-fiduciaries substantially impairs the administration of the estate, (3) because of unfitness, unwillingness or persistent failure of the fiduciary to administer the estate effectively, the court determines that removal of the fiduciary best serves the interests of the beneficiaries, or (4) there has been a substantial change of circumstances or removal is requested by all of the beneficiaries, the court finds that removal of the fiduciary best serves the interests of all the beneficiaries and is not inconsistent with a material purpose of the governing instrument and a suitable co-fiduciary or successor fiduciary is available.
The beneficiaries argue that the court lacks jurisdiction to hear the appeal because § 45a-243 of the General Statutes limits a fiduciary's right of appeal to situations in which the trustee has been removed for cause and a removal pursuant to subsection (4) is not a removal for cause. Connecticut General Statutes § 45a-243 provides:
(a) When any fiduciary has been removed for cause by a court of probate, as provided in Section 45a-242, the fiduciary may appeal from such order of removal in the manner provided in Sections 45a-186 to 45a-193, inclusive.
The beneficiaries maintain that the removal of Fleet Bank in this case was not "for cause," and therefore there is no right of appeal.
Fleet argues that the plain and unambiguous language of Connecticut General Statutes § 45a-243 provides a right to appeal to Fleet.
Thus far, no appellate court has ruled on this issue and that the two cases on point decided in the trial court rendered opposite results. In Fleet National Bank v. Probate Appeal, 33 Conn.L.Rptr. 338, the court (Koletsky, J.), granted the defendants' motion to dismiss the appeal finding that the removal based on "the best interests of the beneficiaries" was not a removal for cause, and therefore the appellant had no standing to bring the appeal. In Fleet Bank v. Foote, 33 Conn.L.Rptr. 391, the court (DiPentima, J.), denied the defendants' motion to dismiss finding that the legislative policy is to provide appellate review when a fiduciary is removed under the provisions of § 45a-242 (a).
Prior to its amendment, subsection (a) of § 45a-242 read as follows:
Removal of fiduciary for cause. If any fiduciary becomes incapable of executing his trust, neglects to perform the duties of his trust, wastes the estate in his charge, or fails to furnish any additional or substitute probate bond ordered by the court, the court of probate having jurisdiction may, upon its own motion, or upon the application and complaint of any person interested or of the surety upon the fiduciary's probate bond, after notice and a hearing, remove such fiduciary.
As demonstrated above, the amended version of the statute does not contain the phrase "for cause" but instead delineates the reasons for removal permitted by the statute. As Judge DiPentima noted, the legislature did not amend § 45a-243 when it amended § 45a-242.
Our Supreme Court has recently abandoned the "plain meaning" rule of statutory interpretation in favor of the Bender formulation which, in addition to the statutory language, considers extra textual sources in order to determine the legislatively intended meaning of the language. See State v. Courchesne, 262 Conn. 537, 563 (2003). "That formulation admonishes the court to consider all relevant sources of meaning of the language at issue — namely, the words of the statute, its legislative history and the circumstances surrounding its enactment, the legislative policy it was designed to implement, and its relationship to existing legislation and to common-law principles governing the same general subject matter." Id.
Connecticut General Statutes § 45a-243 contains both phrases "for cause" and "as provided in § 45a-242." "For cause" is defined as "for a legal reason or ground." Blacks Law Dictionary (Seventh Edition). The beneficiaries, citing Judge Koletsky's decision, urge the court to consider the more narrow definition of "for cause" in West's Legal Dictionary, i.e. "a reason that is relevant to ability and fitness to perform one's duty." (Special Deluxe Ed. 1986.) The bank argues that § 45a-243 provides the right to appeal to any fiduciary removed pursuant to § 45a-242 (a).
In Weill v. Lieberman, 195 Conn. 123 (1985), the Supreme Court had occasion to discuss the legislative history of § 45a-243 (formerly § 45-264):
Under our law before the enactment of § 45-264, a removed fiduciary was "ordinarily not entitled to appeal from the decree removing him . . . The cases held that a fiduciary was not aggrieved, in the absence of some demonstrated pecuniary loss, by impairment of potential future compensation or injury to his status in the community as a professional fiduciary. From the perspective of more recent cases on the law of standing, these precedents may well have taken too narrow a view of the common law of aggrievement . . . They nonetheless were the background against which the legislature decided in 1955 to enact § 45-264 to enlarge the rights of appeal of removed fiduciaries. That legislation would have been pointless if it had not been designed to put the aggrievement issue to rest . . .
When the General Assembly enacted § 45-264, the stated purpose of the legislation was to facilitate appeals by fiduciaries removed for cause. In the Senate, Senator Arthur H. Healey explained that the legislation was designed to allow "any fiduciary [who] has been ordered removed by the court of probate . . . to appeal . . . such removal." 6 S.Proc., Pt. 7, 1955 Sess., p. 2469. In the House, Representative Francis C. Cady said: "This bill gives the right of appeal to an executor, administrator or other fiduciary which was removed for cause by order of the probate court. This is a right which our committee felt any fiduciary should have . . . 6 H.R.Proc., Pt. 5, 1955 Sess., p. 2299."
The legislative history of § 45a-243 (formerly § 45-264) further discloses that the Connecticut Bankers' statement in support of the House Bill was included in the Judiciary Committee Record of Tuesday, March 29, 1955. A relevant portion of that statement reads as follows:
Judges occasionally make errors, and an error in an order for removal perhaps is more likely to occur when it is remembered that in Connecticut a number of probate judges are not even lawyers. It is completely unrealistic and unfair that a fiduciary, whether individual or corporate, should be subjected to the disgrace of removal without having any means of clearing his or its name. The removal of an individual, such as a lawyer, for a fiduciary post, while we trust quite unlikely to happen, could ruin him professionally, and every other way. The removal of a bank that is in the business of being a fiduciary could have a disastrous effect upon its standing and reputation and its future business as such fiduciary. Individual and corporate fiduciaries should have the opportunity to have a removal order by a Probate Judge reviewed by a Judge of the Superior Court.
Statement of Connecticut Bankers Association in Support of H.B. 1591. Although the legislative history lends support to both sides of this dispute, it appears that the purpose of passage was to give any fiduciary removed pursuant to § 45a-242 (a) [then § 45-263] a right to appeal.
Moreover, a review of the legislative history of § 45a-242 (a) discloses a concern that fiduciaries could be removed for improper reasons. Senator Coleman stated: "I believe what the amendment seeks to accomplish is to take into recognition the fact that there have been a lot of mergers of banks and many of the entities that are involved in the role of fiduciary are the result of some of those mergers and to the extent that national banking associations have acquired banks, what the amendment seeks to do is not to have those national banking associations removed from their role as fiduciary merely because they have acquired banks. There must be some other reason. And similarly, with respect to state banks, because they may be smaller, if they're doing the job that is not administrating the trust ineffectively, for example, then those state banks should not be, there should not be an application that is approved seeking the removal of those state banks merely because they are state banks." Senate Proc. May 17, 2001, p. 53, 54; Substitute S.B. 419, An Act Concerning the Removal of a Fiduciary.
"The process of statutory interpretation involves a reasoned search for the intention of the legislature . . . [W]e seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . ." (Internal citations omitted.) Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 61 (2003).
Taking the legislative purposes in enacting the statutes and the amendment to § 45a-242 (a) and the fact that § 45a-243 was not amended at the time of the amendment of § 45a-242 (a) into consideration. It seems clear that the legislative policy is to permit any fiduciary removed pursuant to Connecticut General Statutes § 45a-242 (a) to appeal the removal.
For the reasons stated above, the motion is denied.
GALLAGHER, J.