Opinion
No. CV 03 0830828 S
July 6, 2004
MEMORANDUM OF DECISION
This is an appeal from probate. Claiming that there is no aggrievement and thus no subject matter jurisdiction, the executor and other heirs have moved to dismiss the appeal. I agree with the appellants and deny the motion to dismiss.
The pertinent facts are not subject to serious dispute. The decedent, Edward C. Cordis, Sr., passed away and his will was admitted to probate. Edward C. Cordis, Jr., ("Cordis") was appointed executor. An asset of the estate is the real estate located at 1090 Halladay Avenue in Suffield. In August 2003, Cordis on the one hand and Dino and Tina Isotti on the other hand entered into a real estate purchase agreement. After negotiation, Cordis agreed to sell the property for the amount of $585,050.00. The first agreement was subject to usual conditions, as well as the conditions that the Isottis find a buyer for their current home and, critically, that the agreement was subject to approval by the Probate Court. The Isottis incurred preliminary expenses in reliance on the contract's being performed. On October 21, 2003, a closing date of December 22, 2003 was agreed to, and it was further stated that time was of the essence and that the contract was subject to probate court approval.
The Probate Court held a duly noticed hearing on November 5, 2003. Although the Isottis' attorney received notice of the hearing, the Isottis were apparently out-of-state and in any event did not attend. There apparently had been a suggestion that Cordis had made a "side deal" with the Isotties, but the probate court found no credible evidence of any such arrangement. On the suggestion that a higher purchase price may be available, the court denied the application of the executor to sell the property to the Isottis for the amount of $585,050 and also denied the motion of two of the heirs, Gerald and Mary Cordis, to proceed by the method of "closed sale competitive bidding." Instead, the manner of sale was left to the discretion of the executor, and the court cautioned that the matter should be consummated with dispatch. The court's order was dated November 6, 2003.
On November 10, the executor, working with real estate agents, invited sealed bids to be received no later than November 20; the Isottis submitted a bid of $600,000. The high bid was $660,000. The Isottis were notified that the executor had accepted the high bid, subject again to probate court approval. Subsequently, the Isottis indicated that they would pay $1,000 more than any otherwise high bid. There has been no probate court action on the real estate bid since the allowance of this appeal. This appeal is taken from the denial of the application to approve the Isottis' prior contract with the executor.
Cordis and other heirs have moved to dismiss on the ground of lack of aggrievement. The rubric regarding aggrievement in the appeal from probate context is well-established:
Connecticut General Statute § 45a-186 controls appeals from probate: "(a) any person aggrieved by any order, denial or decree of a court of probate . . . may appeal therefrom to the superior court . . ." "The question of [aggrievement] does not involve an inquiry into the merits of the case." Kucej v. Kucej, 34 Conn. App. 579, 581, 642 A.2d 81 (1994)." The concept of aggrievement depends only on the existence of a cause of action upon which a party may rest his plea for relief. The issue of whether a party was aggrieved under [the operative statute] by the actions of the Probate Court is to be distinguished from the question of whether, on a review of the merits, it will prevail." Baskin's Appeal From Probate, 194 Conn. 635, 638, 484 A.2d 934 (1984).
"The fundamental test for establishing classical aggrievement is well settled: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision . . . Second, the party claiming aggrievement also must demonstrate that its asserted interest has been specially and injuriously affected in a way that is cognizable by law." (Citations omitted; internal quotation marks omitted.) Crone v. Gill, 250 Conn. 476, 480, 736 A.2d 131 (1999).
"[T]wo parts of aggrievement need to be considered: (1) the nature of the appellant's interest, and (2) the adverse effect, if any, of the Probate Court's decision on that interest." Erisoty's Appeal From Probate, 216 Conn. 514, 520, 582 A.2d 760 (1990). "To prosecute an appeal from a Probate Court decree, the plaintiff must be aggrieved by that decree . . . The existence of aggrievement depends upon whether there is a possibility . . . that some legally protected interest which [an appellant] has in the estate has been adversely affected . . . The trial court determines the existence of aggrievement as a matter of fact." (Citations omitted; internal quotation marks omitted.) Bradley's Appeal from Probate, 19 Conn. App. 456, 468, 563 A.2d 1358 (1989). "To qualify as an aggrieved person, the plaintiff must have a pecuniary interest in the subject matter of the decree or order, and that pecuniary interest must be adversely affected by the decree or order from which the appeal is taken . . . If the plaintiff is not an aggrieved party, the appeal is void . . . The plaintiff's appeal should clearly state the basis for his claim of aggrievement . . . and a mere conclusory claim that the plaintiff is aggrieved is insufficient." Lenge v. Goldfarb, 169 Conn. 218, 221, 363 A.2d 110 (1975).
Cammorota v. Appeal From Probate, No. CV 02 0388486S (Mar. 6, 2002), 2002 Ct. Sup. 2852, 31 Conn. L. Rptr. 486.
Aggrievement in the context of bidding on real estate has been the subject of a number of cases. Ordinarily the unsuccessful bidder is not aggrieved, but circumstances may lead to a different conclusion:
Aggrievemnent requires only the existence of a cause of action on which a party's plea for relief may rest. Baskin's Appeal from Probate, supra, 194 Conn. 638. The concept of aggrievement turns on whether there is a possibility, as distinguished from a certainty, that the Probate Court's order or decree has adversely affected some legally protected interest that the appellant has in the subject matter of the decree or order or in the estate. Id.
Our courts have considered the circumstances under which an unsuccessful bidder on the property of an estate may be considered aggrieved under § 45a-186(a) and have held that a bidder on the property of an estate offered for sale has no interest in the property itself. See Merrimac Associates, Inc. v. DiSesa, supra, 180 Conn. 517-18. Significantly, however, a bidder does have an interest in the proceedings employed by the court to approve the sale. Id. In DiSesa, for example, a plaintiff was deemed aggrieved when he was invited to attend a hearing on the sale of real property, submitted the highest bid and was granted a continuance to engage in further negotiations, but the Probate Court rescheduled the continued hearing for an earlier time without notice to the plaintiff and then approved the sale of the property to another bidder. Our Supreme Court stated that "[t]he decision to continue the hearing was based upon a mutual and explicit understanding of court and counsel and conferred upon the plaintiff the right to appear at the hearing at the time agreed upon, unless notified to the contrary." Id., 519. In Bishop v. Bordonaro, 20 Conn. App. 58, 563 A.2d 1049 (1989), the plaintiffs also were deemed aggrieved when they executed a contract with a seller of real property, but the Probate Court ordered that the property be sold to an intervening party who appeared at the subsequent hearing on the application to sell and offered a higher price. Id., 60-61.
Adolphson v. Weinstein, 66 Conn. App. 591, 596 (2001).
Our case law contains factual situations such as Adolphson, supra, which amount only to attempts by unsuccessful bidders to have another chance and another review. These situations typically result in dismissed appeals because of a lack of aggrievement: There never was sufficient stake in the controversy. But where a contract has been accepted by the representative of the estate, but the probate court has entered an order denying approval, the interest of the putative appellant is more immediate and more compelling: There appears to be a difference between never having a contract and having one that is then rescinded. See Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511 (1980) (where the appellant had agreement with representative, subject to court approval, and the court awarded contract to another when the hearing date was advanced without sufficient notice to appellant, the appellant was aggrieved); Hartford Kosher Caterers v. Gazda, 165 Conn. 484 (1973) (where the appellant was notified that it had "won" the contract, and the agreement was rescinded at the Probate Court hearing, the appellant was aggrieved).
The factual context of this case is very similar to that of Bishop v. Bordonaro, 20 Conn. App. 58 (1989). There, the plaintiff signed a contract for the sale of real estate, the contract was presented to the Probate Court for approval, and the contract was not approved. The plaintiff was found to be aggrieved.
If, in this case, only the sealed bid process were in issue, the plaintiff would most likely not be aggrieved and, as noted by the respondents, there may not be an order subject to review, because the probate court has not yet approved any bid. But the order for which review is sought is the one denying the application to approve the contract previously entered into by the Isottis and Cordis. The Isottis have a direct interest in that action of the court and have a status somewhat different from that of the merely unsuccessful bidder. Combined with some question about the bidding process, that factual scenario provides aggrievement.
A question also has been raised concerning the timeliness of the appeal. The original motion for appeal was timely filed, but lacked sufficient bond. The plaintiff's attorney has submitted an affidavit detailing efforts to ascertain proper amounts from the Probate Court. The order appealed from was entered on November 6, the initial motion was filed on November 20. The Probate Court formally allowed the appeal on December 9, even though bond was not posted until December 10. There is, of course, a thirty-day appeal period.
Ordinarily sufficient bond is required in order to take an appeal. But dismissal is not reflexively required if there is a defect as to the bond, or, for that matter, as to timeliness. See Molleur v. Perkins, 82 Conn. App. 468 (2004). For purposes of the motion to dismiss I must accept the facts in the affidavit, and I respect the discretion of the court (though I don't believe I am bound by it) in approving the arguably late appeal.
Finally, the executor suggests that if the appeal is not dismissed, a bond be set in the amount of at least $100,000 as security for expenses and delays caused by the appeal. The court does not consider the matter in this procedural juncture. It would appear, however, that although I have denied the motion to dismiss on jurisdictional and timeliness grounds, I did not perceive a great deal of unfairness in the process before the Probate Court.
The motion to dismiss is denied.
Beach, J.