Opinion
No. CV 03 0520882 S
October 28, 2003
MEMORANDUM OF DECISION, RE MOTION #101, MOTION TO DISMISS
The instant matter is an appeal from the Probate Court for the District of Newington, In the Matter of Andrew W. Torrance.
By way of her Reason for Appeal dated March 24, 2003, the Appellant alleges that she is the surviving spouse of Andrew W. Torrance. The Appellant further alleges that on February 27, 2003, the Probate Court entered a decree admitting the Last Will and Testament of the testator and appointed Jeffrey A. Torrance as fiduciary of the estate.
The appellant asserts that she is aggrieved by the decree of the Probate Court for reason that the subject will made no provisions for her as the surviving spouse.
On September 12, 2003 the Appellee filed a Motion to Dismiss, asserting that the appellant is not aggrieved, and therefore does not have standing to prosecute this matter and this Court therefore does not have subject matter jurisdiction to hear the Appeal.
Because aggrievement (standing) ripeness and justiciability implicate the Court's subject matter jurisdiction, these issues must be resolved before the Court may continue.
It is axiomatic that if the court lacks subject matter jurisdiction, it is without power to hear the matter before it. Therefore, the court must determine the jurisdictional issue before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction.
Pinchbeck v. Dept of Public Health, 65 Conn. App. 201, 208 (2001).
The issue raised by the appellee in its Motion to Dismiss concerns the issue of whether or not the appellant is "aggrieved."
We have ruled previously that the right to appeal from a Probate Court decree, or standing to do so, is statutorily conferred by General Statutes § 45a-186, which determines standing by whether a party is aggrieved by that decree. See Adolphson v. Weinstein, 66 Conn. App. 591, 595, 785 A.2d 275 (2001), cert. denied, 259 Conn. 921, 792 A.2d 853 (2002); see also In re Michaela Lee R., 253 Conn. 570, 606, 756 A.2d 214 (2000) (appeal from probate is absolute right of aggrieved person). "[T]he absence of aggrievement, as required by that statute, is a defect that deprives the Superior Court of jurisdiction to entertain the appeal." (Internal quotation marks omitted.) Adolphson v. Weinstein, supra, 595. Section 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 provided by law, may appeal therefrom to the Superior Court . . ." In relations to appeals from Probate Court decrees, we have ruled that "[a]ggrievement requires only the existence of a cause of action on which a party's plea for relief may rest. 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 [party] has in the subject matter of the decree or order or in the estate."
In re Jessica M., 71 Conn. App. 417, 424 (2002).
Case law in our state is clear that the person seeking to establish aggrievement must do more than just state that he or she is aggrieved.
The question of aggrievement is essentially one of standing . . . Id. Unless the [plaintiff] could establish that [it was] aggrieved by the decision of the [Probate Court, it had] had no standing to appeal. The trial court must be satisfied, first, that the plaintiff alleges facts which, if proven, would constitute aggrievement as a matter of law, and, second, that the plaintiff proves the truth of those factual allegations . . . The mere statement that the appellant is aggrieved, without supporting allegations as to the particular nature of the aggrievement, is insufficient.
State Library v. Freedom of Information Commn., 42 Conn. App. 641, 647 (1996).
Section 45a-186. (Formerly Sec. 45-288) concerns appeals from probate. This statute provides that:
The court notes that the parties cite the former numbers of the cited statutes.
(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 conumssioner of the Superior Court or a bond substantially in accordance with the bond provided for appeals to the Supreme Court. Appeals from any decision rendered in any case after a record is made under Sections 51-72 and 51-73 shall be on the record and shall not be a trial de novo.
(b) Any such appeal shall be filed in the superior court for the judicial district in which such court of probate is located except that (1) any appeal under subsection (b) of Section 12-359 or subsection (b) of Section 12-367 or subsection (b) of Section 12-395, shall be filed in the judicial district of Hartford and (2) any appeal in a matter concerning removal of a parent as guardian, termination of parental rights or adoption shall be filed in the superior court for juvenile matters having jurisdiction over matters arising in such probate district.
Section 45a-191 of the Connecticut General Statutes. (Formerly Sec. 45-293) requires an appellant to specifically state their interest in the appeal. This statute provides that:
In each appeal from probate or from the actions of commissioners, the interest of the appellant shall be stated in the motion for appeal, unless such interest appears on the face of the proceedings and records of such court of probate.
In order to be aggrieved an individual must have a legally protected interest in the Probate Court's proceedings.
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.
Adolphson v. Weinstein, 66 Conn. App. 591, 596 (2001).
The appellee asserts that this matter should be dismissed for reason the appellant did not file her reasons for appeal within ten (10) days of the Return Date. On September 29, 2003, the appellant filed an Objection to the Defendant's Motion to Dismiss. The appellant concedes this point in her Memorandum in Support of said objection. However the appellant asserts that this does not implicate subject matter jurisdiction and therefore is not proper grounds for dismissal. This court agrees with the appellant's assertion that the failure to file the reasons for appeal does not deprive the court of subject matter jurisdiction.
The court notes that the appellant filed a document entitled "Reason of Appeal" on September 29, 2003.
The plaintiff's failure to file the reasons for appeal within ten days from the return date is not a grounds for dismissal of the appeal. See Fischer v. Estate of Mansi, Superior Court, judicial district of New Haven at New Haven, Docket No. 404153 (January 6, 1998, Fracasse, J.) ( 21 Conn. L. Rptr. 289) (failure to file reasons for appeal in compliance with Practice Book § 194, now Practice Book (1998 Rev.) § 10-76, is not fatal to the appeal); Barlow v. Pocsay, 21 Conn. Sup. 352, 354, 154 A.2d 754 (1959) (court is not deprived of subject matter jurisdiction when reasons for appeal are not filed within ten days).
Foster v. Appeal From Probate, No. CV 97 34 12 97S (Oct. 23, 1998, Stodolink, J.) 1998 Ct. Sup. 12789.
The appellee has moved to have this Court Dismiss the instant action for lack of subject matter jurisdiction.
It is well established that "[i]n 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." Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089.
Lawrence Brunoli, Inc. v. Town of Branford, 247 Conn. 407, 410 (1999).
It is well-settled law in this state that an heir in law of a decedent has an interest in a decedent's estate. See Ciglar v. Finklestone, 142 Conn. 432, 435 (1955).
For all of the foregoing reasons, the motion to dismiss for lack of subject matter jurisdiction is denied.
Richard A. Robinson, J.
October 26, 2003