Opinion
No. CV 03 0522346S
January 12, 2004
COURT'S RESPONSE TO DEFENDANT'S MOTION FOR ARTICULATION
The defendant has moved, by her motion dated December 16, 2003, for articulation of the court's oral decision of December 8, 2003 denying the defendant's motion to dismiss dated November 14, 2003. The motion for articulation is granted, and the court's articulation follows.
ARTICULATION Introduction
The captioned matter is an appeal from a decision of the defendant commissioner of social services denying medicaid benefits to the plaintiff's father ("decedent"). The plaintiff brought this appeal pro se, as administrator of the estate of the decedent. The defendant moved to dismiss, claiming that the court lacks subject matter jurisdiction over the appeal because the plaintiff has brought this appeal in a representative capacity, and one who represents an entity (in this case the decedent's estate) cannot prosecute an action pro se.
The court notes that the defendant filed a previous motion to dismiss, dated June 12, 2003, which the defendant subsequently withdrew, and that the defendant filed a motion to dismiss, dated December 19, 2003, after the court denied the motion to dismiss that is the subject of this articulation. The December 19th motion has not yet been acted upon by the court.
Discussion
General Statutes § 51-88 provides, in relevant part: "(a) A person who has not been admitted as an attorney under the provisions of section 51-80 shall not: (1) Practice law or appear as an attorney-at-law for another in any court of record in this state . . . (d) The provisions of this section shall not be construed as prohibiting: . . . any person from practicing law or pleading at the bar of any court of this state in his own cause . . ."
The defendant has succinctly stated her position, as follows: "As a general rule, any person not admitted as an attorney is prohibited from practicing law, except such person may practice law or plead in any court of this state `in his own cause.' See General Statutes § 51-88 . . . The authority to proceed pro se in a court of law is limited to representing one's own cause and does not permit individuals to appear pro se in a representative capacity." (Citation omitted.) (Defendant's brief, p. 3.)
As framed by the defendant, the issue presented is whether the plaintiff has brought this appeal "in a representative capacity."
The court's analysis of the issue whether a fiduciary of a decedent's estate who brings an action acts in a representative capacity begins with what probate practitioners consider the "bible" in their field, "W. Locke P. Kohn, Connecticut Probate Practice (1951)" ("Locke and Kohn"). Section 375 of that treatise, which is captioned "Estate Not a Legal Entity," states: "In its primary meaning the term `estate' simply means the aggregate of the assets of the deceased. It is the sum total of the property formerly owned by the deceased which, after his death, remains subject to administration and distribution. Thus, the estate, instead of being the owner of the assets, is a collective term describing the assets themselves . . . Except for certain limited purposes . . . an estate is not a legal entity. Therefore it cannot be the owner of property, nor incur liabilities, nor be subject to suit. Instead of positing the estate as a legal entity and vesting it with title to the assets of the deceased and installing the executor or administrator as the agent of this entity, the law places the executor or administrator in direct succession to the deceased and vests in him the title to the personal estate.
"The consequence of this concept is that the executor or administrator is the person who individually transacts the business of the estate on his own credit. He (not the estate) employs agents, attorneys and laborers, and becomes himself the original and only debtor for the services so procured, though in behalf of the estate. So, a debt due for rent from a tenant occupying real estate of a deceased person (under the statute vesting in the executor or administrator the same title to rents accruing after death as he has in personal property of the deceased) is not a debt due the estate but is one due the executor or administrator." Locke Kohn, pp. 281-82.
To the same effect is Isaac v. Mount Sinai Hospital, 3 Conn. App. 598, 490 A.2d 1024 (1985). In that case the court observed: "An estate is not a legal entity. It is neither a natural nor artificial person, but is merely a name to indicate the sum total of the assets and liabilities of the decedent or incompetent . . . Not having a legal existence, it can neither sue nor be sued." (Citations omitted; internal quotation marks omitted.) Id., 600.
In Estate of Schoeller v. Becker, 33 Conn. Sup. 79, 360 A.2d 905 (1975), suit had been brought in the name of "Estate of V. Donald Schoeller," and two defendants moved to erase (forerunner to a motion to dismiss) the case on the ground that an estate is not a proper party. In granting that motion, and in denying a motion for permission to amend the complaint to name the fiduciary of the estate as a party, the court said: "In the present case the action was not started by a legal person; it is a nullity and there is nothing before the court to amend." Id., 80.
Schoeller not only stands for the proposition that a fiduciary is a proper party in an action involving a decedent's estate, but also for the principle that a fiduciary is the only proper party in an action involving a decedent's estate, and that an estate cannot be a party to such an action. Applying that principle to the facts of this case, it is clear that the plaintiff did not bring this appeal as a representative of the decedent's estate. Rather, this appeal is a chose-in-action which is personal to the plaintiff. Therefore, the plaintiff is under no disability which inhibits his right to maintain this appeal pro se.
CONCLUSION
On the authority of Locke and Kohn, Isaac and Schoeller, and as stated from the bench at the conclusion of the argument on the defendant's motion to dismiss, that motion is denied.
G. Levine, J.