Opinion
No. DBD CV10-5008768 S
December 8, 2010
MEMORANDUM OF DECISION Motion to Dismiss #111
I. FACTS AND PROCEDURAL HISTORY
The plaintiffs, Mark Ragette and Paul Ragette, appeal from an order of the Probate Court, District of Brookfield denying their request to remove Lorraine F. Ragette, the defendant, as trustee of the Ralph E. Ragette Credit Shelter Trust and Ralph E. Ragette Marital Trust. In their complaint, the plaintiffs allege the following facts. The plaintiffs' brother, Ralph R. Ragette, assumed control of their father's real estate business in 1996 and was a tenant in a building owned by the Ralph E. Ragette Credit Shelter Trust and Ralph E. Ragette Marital Trust. In 2007, the plaintiffs learned that the defendant, as trustee, mortgaged the property to provide Ralph R. Ragette with $250,000 to assist him in his real estate business, which was struggling at the time. The defendant subsequently mortgaged the property to secure an additional $400,000. On August 21, 2009, the plaintiffs petitioned the Probate Court, District of Brookfield, seeking to remove the defendant as trustee because her actions, according to the plaintiffs, constituted a clear misappropriation of funds.
There are four other named defendants in the present case: the Honorable Daniel J. O'Grady, judge of the Probate Court for the district of Brookfield, Neil F. Ragette, and Elaine R. Brietling, and Ralph R. Ragette. Ralph R. Ragette is appearing pro se, while the other three individuals are nonappearing defendants. None of these defendants are parties to the present motion. Hereinafter, the term "the defendant" refers to Lorraine F. Ragette.
On February 1, 2010, the Probate Court, O'Grady, J., issued a decree denying the request for the removal of the defendant as trustee. The court found that the plaintiffs had become estranged from the defendant and their siblings. Moreover, the court found that the defendant, as the trustee, had followed the court's orders and made due accountings to the court. The plaintiffs failed to show that the defendant caused any harm to the trust or acted outside the scope of her fiduciary duties.
On March 3, 2010, the plaintiffs filed the present appeal with the court, pursuant to General Statutes § 45a-186. In their appeal, the plaintiffs allege that they have been "aggrieved, violated and denied of [their] legal rights to a fair hearing" on their motion to remove the defendant as trustee. They also allege, inter alia, that the defendant breached her fiduciary duties.
On June 1, 2010, the defendant filed the present motion to dismiss "based on lack of jurisdiction over the person, insufficiency of service of process and/or insufficiency of process." Specifically, the defendant moves to dismiss on the following five grounds: 1) the appeal was not timely commenced because the service of process was made more than thirty days after the issuance of the decree of the Probate Court; 2) the plaintiffs failed to serve the defendant, serving, instead, her attorney Arthur C. Weinshank, who is not authorized to accept service on the defendant's behalf; 3) the plaintiffs' summons does not comply with Practice Book § 8-4; 4) the plaintiff Paul Ragette never signed the summons; and 5) because the defendant was not named in her capacity as trustee in the summons, the appeal must be dismissed to the extent that it is an appeal against the defendant in that capacity. The motion is accompanied by a memorandum of law, as well as affidavits from the defendant, Attorney Weinshank, and Meegan Buckley, the chief clerk for the Probate Court, District of Brookfield. On June 8, 2010, the plaintiffs filed an objection to the motion to dismiss. This matter was heard at short calendar on August 16, 2010.
II. 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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, 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.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
"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 . . . In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common law jurisdiction, but of a Probate Court." (Internal quotation marks omitted.) Silverstein v. Laschever, 113 Conn.App. 404, 409, 970 A.2d 123 (2009).
"Our legislation has always favored the speedy settlement of estates, and to that end has carefully limited the time within which such appeals [from probate] must be taken . . . It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation . . . Our courts of probate have a limited jurisdiction and can exercise only such powers as are conferred on them by statute . . . They have jurisdiction only when the facts exist on which the legislature has conditioned the exercise of their power . . . The Superior Court, in turn, in passing on an appeal, acts as a court of probate with the same powers and subject to the same limitations." (Internal quotation marks omitted.) Corneroli v. D'Amico, 116 Conn.App. 59, 63, 975 A.2d 107, cert. denied, 293 Conn. 928, 980 A.2d 909 (2009). "The right to appeal from the decision of a Probate Court is purely statutory . . . and the requirements fixed by statute for taking and prosecuting the appeal must be met . . . The failure to appeal timely from the decision or decree of the Probate Court warrants the dismissal of the appeal." (Citations omitted; internal quotation marks omitted.) Porto v. Sullivan, 119 Conn.App. 360, 365-66, 987 A.2d 1092 (2010).
In her memorandum of law, the defendant argues that the probate appeal must be dismissed because the plaintiffs commenced this action more than thirty days following the issuance of the Probate Court's decision in violation of General Statutes § 45a-187, which provides the time limit governing probate appeals taken under § 45a-186. According to the defendant, the decree was issued on February 1, 2010, and mailed on February 3, 2010. Because thirty days from February 3, 2010 would have been March 5, 2010, and because the defendant was served on March 9, 2010, which is thirty-four days after February 3, 2010, the plaintiffs' appeal was untimely commenced. The defendant cites to Estate of Kenny v. Probate Appeal, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 07 4012194 (October 11, 2007, Robinson, J.), as support for her argument.
General Statutes § 45a-187(a) provides in relevant part: "An appeal under Section 45a-186 by persons of the age of majority who are present or who have legal notice to be present, or who have been given notice of their right to request a hearing or have filed a written waiver of their right to a hearing, shall be taken within thirty days, except as otherwise provided in this section." 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, not later than . . . thirty days after mailing of an order, denial or decree for any other matter in a court of probate, appeal therefrom to the Superior Court. Such an appeal shall be commenced by filing a complaint in the superior court in the judicial district in which such court of probate is located . . ." (Emphasis added.)
The defendant cites to Estate of Kenny, a 2007 Superior Court decision, as support for the proposition that because she was served on March 9, 2010, which is thirty-four days after the decree was mailed on February 3, 2010, the plaintiffs' appeal was untimely commenced. However, the court in Estate of Kenny interpreted the previous version of § 45a-186. In fact, § 45-186 was amended by Public Acts 2007, No. 07-116, which became effective on October 1, 2007. Public Acts 2007, No. 07-116, § 2 "repealed the then existing § 45a-186 governing appeals from probate and substituted revised, and substantially simplified, procedures for prosecuting appeals from probate." Gates v. Gates, 51 Conn.Sup. 148, 150, 975 A.2d 147 [ 46 Conn. L. Rptr. 102], aff'd, 115 Conn.App. 293, 971 A.2d 852 (2009). In Gates, the court undertook an analysis of Public Acts 2007, No. 07-116 in determining whether a probate appeal was timely filed within the statutory, thirty-day time limitation from the date the Probate Court mailed its decision. The court reached the following conclusion: "When viewing the text of the statute itself and its relationship to other statutes . . . the meaning of the statute is plain and unambiguous. A party appealing to the Superior Court from probate is required to commence the appeal by filing the complaint with the court within thirty days of the mailing of the challenged action. The statute does not provide . . . that a probate appeal is timely commenced by serving the complaint on the Probate Court and interested parties within those thirty days, as would be the case in an ordinary civil action." Gates v. Gates, supra, 51 Conn.Sup. 152-53.
"Section 45-186 C.G.S. concerns appeals from probate. It provides in pertinent part that: `(a) 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. Except in the case of an appeal by the state, such person shall give security for costs in the amount of one hundred fifty dollars, which may be paid to the clerk, or a recognizance with surety annexed to the appeal and taken before the clerk or a commissioner of the Superior Court or a bond substantially in accordance with the bond provided for appeals to the Supreme Court.'" Estate of Kenny, supra, Docket No. 07 4012194.
Public Acts 2007, No. 07-116, § 2 provides in relevant part: "(a) Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may . . . not later than thirty days after mailing of an order, denial or decree for any other matter in a court of probate, appeal therefrom to the Superior Court . . . Such an appeal shall be commenced by filing a complaint in the superior court in the judicial district in which such court of probate is located . . .
(b) Each person who files an appeal pursuant to this section shall serve a copy of the complaint on the court of probate that rendered the order, denial or decree appealed from and on each interested party. The failure of any person to make such service shall not deprive the Superior Court of jurisdiction over the appeal. Notwithstanding the provisions of Section 52-50, service of the copy of the complaint shall be by state marshal, constable or an indifferent person. Service shall be in hand or by leaving a copy at the court of probate that rendered the order being appealed, or by leaving a copy at the place of residence of the interested party being served or at the address for the interested party on file with said court of probate, except that service on a respondent or conserved person in an appeal from an action under part IV of chapter 802h shall be in hand by a state marshal, constable or an indifferent person.
(c) Not later than fifteen days after a person files an appeal under this section, the person who filed the appeal shall file or cause to be filed with the clerk of the Superior Court a document containing (1) the name, address and signature of the person making service, and (2) a statement of the date and manner in which a copy of the complaint was served on the court of probate and each interested party.
(d) If service has not been made on an interested party, the Superior Court, on motion, shall make such orders of notice of the appeal as are reasonably calculated to notify any necessary party not yet served . . ."
In the present case, the plaintiffs filed the complaint with the court on March 3, 2010, which is within thirty days of February 3, 2010, when the decree of the Probate Court was mailed. Therefore, the appeal was timely commenced under both the § 45a-186 and § 45a-187 thirty-day time limitation. As a result, the defendant's motion to dismiss on the ground that the plaintiff's appeal was not timely commenced is denied.
The defendant also moves to dismiss on the ground that the defendant was not properly served. In her memorandum of law, the defendant argues that pursuant to § 45a-186, the plaintiffs were required to leave a copy of the summons and complaint at her place of residence or at an address on file with the Probate Court. In the present case, the plaintiffs attempted service of process on the defendant "c/o Cramer Anderson . . . at Attn: Arthur C. Weinshank . . . [b]y delivering a true copy to Arthur C. Weinshank." Although Attorney Weinshank represented the defendant in her fiduciary capacity at the Probate Court, he did not represent her in her individual capacity and was never authorized to act as agent for service of process for the defendant individually. Because the defendant was never served at her place of residence or an address on file with the Probate Court, and because the plaintiffs have not established that Weinshank had the authority to receive process for the defendant, "the attempted service on [the defendant] was not proper and, therefore, [the] defendant's motion to dismiss should be granted."
Section 45a-186(b) provides in relevant part: "Each person who files an appeal pursuant to this section shall serve a copy of the complaint on the court of probate that rendered the order, denial or decree appealed from and on each interested party. The failure of any person to make such service shall not deprive the Superior Court of jurisdiction over the appeal. Service shall be in hand or by leaving a copy at the court of probate that rendered the order being appealed, or by leaving a copy at the place of residence of the interested party being served or at the address for the interested party on file with said court of probate . . ." (Emphasis added.) Moreover, § 45a-186(d) provides the following: "If service is not made on an interested party, the Superior Court on motion, shall make such orders of notice of the appeal as are reasonably calculated to notify any necessary party not yet served."
Therefore, pursuant to § 45a-186(b), the plaintiffs' failure to serve the defendant does not affect jurisdiction whatsoever. Moreover, "[i]f the failure to serve an interested party at all does not affect jurisdiction, then, logically, mere failure to serve an interested party properly or to make a proper return of service . . . should not deprive this court of jurisdiction." (Emphasis in original.) Gregoire v. Thompson Probate Court, Superior Court, judicial district of Windham, Docket No. CV 08 4008194 (March 3, 2009, Foley, J.T.R.) ( 47 Conn. L. Rptr. 329, 331) (interpreting § 45a-186). Thus, the defendant's motion to dismiss the plaintiffs' appeal on the ground that the defendant was not properly served is denied.
In addition, the defendant argues that the plaintiffs' appeal should be dismissed on the grounds that the plaintiffs' summons does not comply with Practice Book § 8-4 and that the plaintiff Paul Ragette never signed the summons, which, the defendant contends in her memorandum of law, is in contravention of Practice Book § 8-1. Practice Book § 1-1 provides in relevant part: "The rules for the Superior Court govern the practice and procedure in the Superior Court in all civil and family actions whether cognizable as cases at law, in equity or otherwise, in all criminal proceedings and in all proceedings on juvenile matters." (Emphasis added.) Nevertheless, the rules of practice do not apply to the present case, which is not a civil action but, in fact, a probate appeal. "An appeal from a probate order or decree to the Superior Court is not a civil cause of action. It has no more of the ordinary attributes of a civil action than the original proceedings in the court of probate." Silverstein's Appeal from Probate, 13 Conn.App. 45, 53, 534 A.2d 1223 (1987); see also Slattery v. Woodin, 90 Conn. 48, 50, 96 A. 178 (1915) ("[a]ppeals from probate are not `actions' or `civil causes or actions, between party and party'° "); Gates v. Gates, supra, 51 Conn.Sup. 151 ("[t]he court disagrees with the plaintiff's contention that an appeal from probate is a civil action governed by the rules of practice, statutory and other law pertaining to such actions"). "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 . . . In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common law jurisdiction, but of a Probate Court." (Citations omitted; internal quotation marks omitted.) State v. Gordon, 45 Conn.App. 490, 494, 696 A.2d 1034, cert. granted on other grounds, 243 Conn. 911, 701 A.2d 336 (1997) (appeal dismissed October 27, 1998). Therefore, the defendant's motion to dismiss the plaintiffs' appeal on the grounds that they violated Practice Book §§ 8-1 and 8-4 is denied.
The defendant also cites to General Statutes § 52-45a and cases interpreting that statute (and Practice Book § 8-1) as additional support for the proposition that the plaintiff Paul Ragette's failure to sign the summons rendered it defective and, therefore, deprives the court of jurisdiction. However, § 52-45a, like Practice Book § 8-1, applies only to civil actions; § 52-45a provides in relevant part: "Civil actions shall be commenced by legal process consisting of a writ of summons or attachment . . . [and] [t]he writ . . . shall be signed by a commissioner of the Superior Court." Nevertheless, as the court has already indicated, an appeal from probate is not a civil action. Silverstein's Appeal from Probate, 13 Conn.App. 45, 53, 534 A.2d 1223 (1987). Thus, the defendant's motion to dismiss the plaintiffs' appeal on the ground that Paul Ragette's failure to sign the summons violated § 52-45a is also denied.
Finally, the defendant makes another insufficiency of service of process argument. She contends that the plaintiffs' appeal should be dismissed on the ground that to the extent that the appeal is against the defendant in her capacity as trustee, there was insufficient service of process because she was not named in the summons in that capacity. The defendant states that "[f]or [the defendant] to be a defendant in her capacity as Trustee, the summons must name her and she must be served in that capacity. That service may have been attempted on her in individual capacity . . . is of no consequence." The defendant cites to Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 826 A.2d 107 (2003), General Motors Acceptance Corp. v. Pumphrey, 13 Conn.App. 223, 535 A.2d 396 (1988), Eloi v. Gagnon, Superior Court, judicial district of Hartford, Docket No. CV 07 4030795 (December 3, 2007, Bentivegna, J.), and General Statutes § 52-45a as support for her argument. Nevertheless, all of the cases cited by the defendant are civil actions, and, as the court has previously stated, the present case is a probate appeal which is not "governed by the rules of practice, statutory and other law pertaining to [civil] actions." Gates v. Gates, supra, 51 Conn.Sup. 151. Therefore, the case law cited by the defendant is inapplicable to present case. Likewise, § 52-45a, which pertains to civil actions, is also inapplicable. Moreover, as the court has also previously indicated, in probate appeals "[i]f the failure to serve an interested party at all does not affect jurisdiction, then, logically, mere failure to serve an interested party properly or to make a proper return of service . . . should not deprive this court of jurisdiction." (Emphasis in original.) Gregoire v. Thompson Probate Court, supra, 47 Conn. L. Rptr. 331. Although the plaintiffs have failed to name the defendant in her capacity as trustee in the summons, § 45a-186(d) provides that "[i]f service is not made on an interested party, the Superior Court, on motion, shall make such orders of notice of the appeal as are reasonably calculated to notify any necessary party not yet served." Thus, "the court should reserve the right to order, if necessary, notice which does comply with § 45a-186(b) . . . before further proceeding with the case." Gregoire v. Thompson Probate Court, supra, 331.
See footnote four.
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss is hereby denied. The plaintiffs are directed to comply with § 45a-186(b) forthwith.