Opinion
No. CV 03-04805262 S
May 27, 2004
MEMORANDUM OF DECISION RE DEFENDANT'S OBJECTION TO, AND MOTION TO STRIKE, PLAINTIFF'S REASONS FOR APPEAL DATED SEPTEMBER 10, 2003 (#105)
This is a probate appeal brought pursuant to the order of the Probate Court for the District of Branford (Hon. John E. Donegan) granting the appellant's motion to appeal. Pursuant to that order, appellant brought the present appeal to the superior court with a return date of August 12, 2003. On September 10, 2003, appellant filed his reasons for appeal. See #103.
The defendant moved to dismiss the present appeal asserting that the appellant had not filed his reasons of appeal within ten days after the return date in violation of Practice Book § 10-76(a). See Motion to Erase and Dismiss (#101). The appellant objected to this motion. The objection to the motion to dismiss was sustained by the court (Jones, J.) in a ruling from the bench on September 15, 2003.
Section 10-76(a) provides: "Unless otherwise ordered, in all appeals from probate the appellant shall file reasons of appeal . . . within ten days after the return date . . ."
In the present motion, the defendant moves to strike the reasons of appeal, not because of a legal insufficiency, but rather because the failure to file the reasons within ten days of the return date allegedly deprives the court of subject matter jurisdiction. The present motion, again, rests upon the noncompliance with Practice Book § 10-76(a) that was asserted to support the earlier motion to dismiss. In this regard, the appellant persuasively asserts that Judge Jones already decided this issue when he denied the motion to dismiss.
On its merits, the defendant's claim turns on whether the word "shall" in § 10-76(a) is mandatory or directory. The defendant cites to State v. Cook, 183 Conn. 520 (1981), that interpreted a Practice Book rule requiring that a warrant "shall" be signed by the judicial authority, as mandatory. Id., 522. Cook, however, made clear that the rules of statutory construction are also applicable to the interpretation of Practice Book rules. Id., 521. In construing statutes, our Supreme Court has not consistently interpreted "shall" as a mandatory command See e.g. CT Page 8432 Sears Roebuck Co. v. Board of Tax Review, 241 Conn. 749, 760-61 (1997). Indeed, such philological interpretation has caused some consternation. See id., 767 (McDonald, J., dissenting). In the present context, however, this mandatory/directory issue has been resolved — at least at the superior court level. "The universal view of trial courts and the commentators to our Practice Book is that untimely filing of reasons of appeal is not jurisdictional, but rather is comparable to late-filed pleadings." See Fischer v. Estate of Michael Mansi, 21 Conn. L. Rptr. 289, 290 (1998); Rizzo v. Estate of Lucy Magnano, 9 Conn. L. Rptr 545 (1993); Keily v. Yelder, 4 CSCR 841 (1989); Barlow v. Pocsay, 21 Conn. Sup. 352 (construing late filing of reasons of appeal as analogous to late filing of pleadings); see also Author's Comment, Practice Book Annotated Superior Court Rules § 10-76.
Motion denied.
Devlin, J.