Opinion
CV156012143S
08-23-2016
Richard Urkiel, Executor (Estate of Charlotte L. Urkiel) et al. v. Patrice A. Hamilton, Esq
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS #105
John W. Pickard, J.
On February 4, 2016, the plaintiffs, Richard Urkiel, individually and as executor of the estate of Charlotte L. Urkiel, and Jean Fraser, filed an amended complaint against the defendant, Patrice Hamilton, alleging negligence, negligent infliction of emotional distress, breach of fiduciary duty, fraud, and conversion. The plaintiffs seek monetary damages, prejudgment interest, costs, and punitive damages, and also request attorneys fees for the breach of fiduciary duty claim. On March 31, 2016, the defendant filed a motion to dismiss (#105) on the ground that this court lacks subject matter jurisdiction. For the reasons set forth below, the court denies the defendant's motion to dismiss.
FACTS AND PROCEDURAL HISTORY
The plaintiffs filed their complaint against the defendant individually and in her capacity as guardian ad litem and temporary conservator. The plaintiffs are the children of the decedent, Charlotte L. Urkiel, who passed away on July 8, 2015.
Pursuant to the General Durable Powers of Attorney dated March 10, 2004 and February 22, 2012, Richard Urkiel was the decedent's attorney-in-fact and declared executor of her estate by a decree of the Court of Probate for the Housatonic Probate District (the Probate Court) on August 27, 2015. The defendant is an attorney licensed by the State of Connecticut and in or about March 2013, she was appointed guardian ad litem for the decedent in a matter pending in the Probate Court. In her capacity as guardian ad litem, the defendant filed an application for the Appointment of a Temporary Conservator of the decedent's estate with the Probate Court. In reliance on the application submitted by the defendant, the Probate Court issued an Ex Parte Decree on March 28, 2013, appointing the defendant as temporary conservator of the decedent's estate. The decree stated that the appointment would be valid for thirty days, unless an application was filed under General Statutes § 45a-650, in which case the appointment would not exceed sixty days, pursuant to General Statutes § 45a-654(a). Notwithstanding the thirty-day maximum outlined in § 45a-654(a), the defendant's appointment as temporary conservator lasted for approximately one year.
The plaintiffs allege the following facts concerning the defendant's application for the appointment of a temporary conservator. The decedent had a comprehensive structure of unrevoked, unchallenged, and fully valid estate planning documents in place, and the filing of an application for appointment of a temporary conservator was unnecessary and not in the decedent's best interest. These estate planning documents provided for the management of all of her personal, healthcare, and financial affairs by people she selected and trusted. These documents include, but are not limited to, General Durable Powers of Attorney, health care instructions and healthcare related appointments, a last will and testament, and a living trust.
The defendant made multiple misrepresentations of material facts on the temporary conservator application, as demonstrated by the following. First, the defendant failed to perform a reasonable and adequate investigation prior to filing the application for temporary conservator to determine whether the filing would be in the decedent's best interests. The defendant also never discussed the necessity of such an application with the decedent's children or her estate planning attorney, Barbara Reynolds, Esq., who was known to the defendant. Next, the defendant failed to have the decedent examined by a licensed physician to determine whether the decedent was incapable of managing her affairs, caring for herself or in need of a temporary conservator. Despite the failure to obtain a licensed physician's opinion, the defendant represented that the decedent was incapable of managing her own affairs.
Furthermore, the defendant averred that the decedent had not designated a conservator, when she had, in fact, done so. The defendant also represented that the decedent had not executed a living will, even though the decedent had executed Heath Care Instructions, which constituted or were the equivalent of a living will. Notwithstanding the fact that the decedent had appointed a health care agent, the defendant represented that she had not. Finally, the defendant asserted that the decedent was not able to request or obtain an attorney, when the defendant knew that Attorney Barbara Reynolds was the decedent's estate planning attorney.
In proposing herself as the temporary conservator, the defendant submitted the application under a conflict of interest. By remaining temporary conservator, the defendant continued to receive compensation from the decedent's estate. During her appointment, the defendant owed a duty to the decedent and her children, as heirs-at-law and beneficiaries of her estate, to take appropriate action to end the illegal temporary conservatorship. Regardless of this duty, the defendant took every opportunity to support the continuation of her illegal temporary conservatorship and to resist its termination.
The parties in this action are also involved in two consolidated probate appeals pending in the Judicial District of Danbury (the probate appeals). Hamilton v. Day Pitney, LLP, Superior Court, judicial district of Danbury, Docket No. CV-14-6016289-S; Urkiel v. Hamilton, Superior Court, judicial district of Danbury, Docket No. CV-14-6016958-S. Both probate appeals relate to a decree of the Probate Court that rendered temporary conservatorship. The Hamilton appeal disputes the disallowance of money on the defendant's final account and the decree surcharging the defendant for that amount. The Urkiel appeal challenges the temporary conservatorship as fraudulent and disputes the allowance of a temporary conservator's fee to the defendant for the thirty-day statutory period.
On March 31, 2016, the defendant filed a motion to dismiss (#105), arguing that the court lacks of subject matter jurisdiction because the plaintiffs' claims are not ripe for adjudication since they are essentially identical to the issues raised in the Probate Appeals. The plaintiffs submitted an objection and memorandum in opposition to the motion (#109) on May 26, 2016. The defendant filed a reply brief (#110) on June 14, 2016, and the plaintiffs filed a sur-reply (#111) on June 24, 2016. The matter was heard at short calendar on June 27, 2016.
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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." (Internal quotation marks omitted.) Mark v. Neundorf, 147 Conn.App. 485, 489, 83 A.3d 685 (2014). " [T]he question of subject matter jurisdiction . . . once raised, either by a party or by the court itself . . . must be answered before the court may decide the case." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007). " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).
The defendant argues that a resolution of the issues in the probate appeals is a necessary prerequisite to the adjudication of the claims in this action because they involve mutual, identical, and overlapping issues, such as whether the temporary conservatorship was void ab initio. The defendant asserts that there are complex factual and legal issues that are within the original jurisdiction of the Probate Court, and therefore this court must defer to the findings of the Probate Court. Accordingly, the defendant maintains that the claims against in the present case are purely hypothetical.
The defendant also claims that she would be protected from personal liability by the doctrine of quasi-judicial immunity, which would serve as a complete bar to the instant tort action. " [C]onservators are entitled to quasi-judicial immunity from liability for acts that are authorized or approved by the Probate Court." Gross v. Rell, 304 Conn. 234, 253, 40 A.3d 240 (2012). However, " [w]hen the conservator's acts are not authorized or approved by the Probate Court, [there is] no reason to depart from the common-law rule that the conservator of the estate is not acting as the agent of that court, but as the fiduciary of the conservatee, and, as such, may be held personally liable." Id., 253-54. In the present case, if the plaintiffs are able to prove that the tortious acts alleged were committed and unauthorized by the Probate Court, the defendant would not be entitled to quasi-judicial immunity.
In their objection to the motion, the plaintiffs argue that the mere fact that the probate appeals have issues in common with this case does not render the present action unripe. The plaintiffs assert that the test for determining ripeness is whether it is truly impossible for the present action to be decided until a certain issue is resolved in an earlier proceeding. They argue that this court's ability to adjudicate the claims in the present action is not dependent or contingent on the resolution of the probate appeals. Further, the plaintiff's claim that the issues are not within the exclusive original jurisdiction of the Probate Court, because the Probate Courts have no jurisdiction to award damages or adjudicate civil actions.
The plaintiffs also argue that the defendant is making a prior pending action argument, rather than a ripeness argument, and that the issue of prior pending action is not relevant to subject matter jurisdiction. In her reply memorandum and during oral argument, however, the defendant averred that she is not making a prior pending action argument. Therefore, this court need not address the merits of a motion to dismiss on the grounds of prior pending action.
" A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction." (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86, 952 A.2d 1 (2008). " [J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter . . . Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant." (Citations omitted; internal quotation marks omitted.) Cadle Co. v. D'Addario, 111 Conn.App. 80, 82, 957 A.2d 536 (2008). " [R]ipeness is a sine qua non of justiciability . . ." (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 812, 967 A.2d 1 (2009).
Matters over which the Probate Courts have original jurisdiction are enumerated in General Statutes § 45a-98. " The Probate Court is a court of limited jurisdiction prescribed by statute, and it may exercise only such powers as are necessary to the performance of its duties . . . As a court of limited jurisdiction, it may act only when the facts and circumstances exist upon which the legislature has conditioned its exercise of power . . . Such a court is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation . . . By contrast, [t]he Superior Court of this state as a court of law is a court of general jurisdiction. It has jurisdiction of all matters expressly committed to it and of all others cognizable by any law court of which the exclusive jurisdiction is not given to some other court. The fact that no other court has exclusive jurisdiction in any matter is sufficient to give the Superior Court jurisdiction over that matter." (Citations omitted; footnote omitted; internal quotation marks omitted.) Geremia v. Geremia, 159 Conn.App. 751, 766-67, 125 A.3d 549 (2015).
General Statutes § 45a-98(a) provides in relevant part: " Courts of probate . . . shall have the power to (1) grant administration of intestate estates . . . (2) admit wills to probate . . . (3) . . . determine title or rights of possession and use in and to any real, tangible or intangible property that constitutes, or may constitute, all or part of . . . any decedent's estate, or any estate under control of a guardian or conservator, which . . . estate is otherwise subject to the jurisdiction of the Probate Court, including the rights and obligations of any beneficiary of the . . . estate . . . (4) . . . construe the meaning and effect of any will or trust agreement . . . (5) . . . apply the doctrine of cy pres or approximation; (6) . . . call executors, administrators, trustees, guardians, conservators . . . and attorneys-in-fact acting under powers of attorney created in accordance with section 45a-562, to account concerning the estates entrusted to their charge; and (7) make any lawful orders or decrees to carry into effect the power and jurisdiction conferred upon them by the laws of this state."
" In a probate appeal . . . the Superior Court's jurisdiction is statutory and limited to the order appealed from. The issues presented for review are those defined in the reasons of appeal. The Superior Court cannot consider or adjudicate issues beyond the scope of those proper for determination by the order or decree attacked." (Internal quotation marks omitted.) Marshall v. Marshall, 71 Conn.App. 565, 570, 803 A.2d 919, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002). " [W]here a Probate Court appeal and a Superior Court action are both instituted in the same matter, the latter will not be dismissed if it affords the plaintiff a remedy otherwise unavailable before the Probate Court . . ." Kolodney v. Kolodney, 2 Conn.App. 697, 700, 483 A.2d 622 (1984).
Particularly relevant and instructive to this court's analysis is the Appellate Court decision, Geremia v. Geremia, supra, 159 Conn.App. 751. In that case, the beneficiaries filed a complaint in the Superior Court challenging the actions of fiduciaries of an estate, while there was a pending case in the Probate Court. The complaint contained many causes of action, including conversion, intentional infliction of emotional distress, and breach of fiduciary duty. The defendants moved to dismiss on the ground that the Superior Court lacked subject matter jurisdiction over the causes of action due to the doctrine of primary jurisdiction, because the plaintiffs had brought an action in Probate Court that was pending. The Superior Court granted the defendants' motion to dismiss [57 Conn.L.Rptr. 874, ], and the Appellate Court reversed in part, holding that the Superior Court had jurisdiction to hear the claims.
The Appellate Court rejected the defendant's assertion that the Probate Court had exclusive jurisdiction over claims of breach of fiduciary duty and conversion relating to the management of an estate. In discussing the conversion claim, the Appellate Court explained: " [T]he exercise of [the power to hear a conversion case] is not entrusted solely with the Probate Court. Section 45a-98(b) expressly provides in relevant part that [t]he jurisdiction of courts of probate to determine title or rights or to construe instruments . . . pursuant to subsection (a) of this section is concurrent with the jurisdiction of the Superior Court and does not affect the power of the Superior Court as a court of general jurisdiction." (Internal quotation marks omitted.) Geremia v. Geremia, supra, 159 Conn.App. 771.
The court went on to discuss the breach of fiduciary duty claim, citing to Dettenborn v. Hartford-National Bank & Trust Co., 121 Conn. 388, 185 A. 82 (1936). The Dettenborn court held that " [t]he jurisdiction of Courts of Probate to pass upon the accounts of a testamentary trustee is not, however, exclusive, and courts of general jurisdiction may entertain actions against trustees for breaches of their duty, the jurisdiction of the two courts being concurrent." Id., 391-92. " [T]he allowance by a probate court of the account of a testamentary trustee does not constitute an adjudication of any matter not apparent on the face of the account nor bar a beneficiary from a subsequent action in the Superior Court to recover damages for a breach of trust by a trustee." (Internal quotation marks omitted.) Geremia v. Geremia, supra, 159 Conn.App. 776.
The Appellate Court also concluded that the Probate Court did not have jurisdiction over actions sounding in tort and did not have the ability to award punitive damages. " Neither § 45a-98 nor any other provision of the General Statutes vests the Probate Court with jurisdiction, exclusive or otherwise, over those actions sounding in tort." Geremia v. Geremia, supra, 159 Conn.App. 770. Claims that " go well beyond merely requesting an accounting and seek equitable and monetary relief, including, inter alia, punitive damages . . . must be brought in a court of general jurisdiction because [t]he Probate court [does] not have jurisdiction to adjudicate or award damages therefore." (Internal quotation marks omitted.) Id., 776-77. " It would . . . be inappropriate to allow a court to entertain an action in which it is without the power to grant the relief requested." (Internal quotation marks omitted.) Id., 774.
In the present case, the plaintiffs' allegations do not fall within the exclusive jurisdiction of the Probate Court. First, nothing in the General Statutes or case law prevents the plaintiffs from bringing an action in the Superior Court to recover damages arising from the alleged breach of fiduciary duty. In fact, the Geremia court made clear that breach of fiduciary duty claims can be heard in the Superior Court while an underlying action is pending in the Probate Court. The plaintiffs' breach of fiduciary duty claim goes beyond the request for accounting and seeks monetary damages, attorneys fees, prejudgment interest, costs, and punitive damages. Consequently, this claim must be brought in the Superior Court, because the Probate Court does not have jurisdiction to award these damages.
Additionally, the Probate Court does not have exclusive jurisdiction over actions sounding in tort. The appeals court will not decide issues beyond the scope of those on appeal, which have been defined to be whether the defendant's temporary conservatorship was fraudulent from its inception and whether the conservatorship terminated by operation of law after thirty days. In hearing the probate appeals, the Danbury Superior Court will not have jurisdiction to decide whether the defendant acted negligently or committed the torts of conversion, negligent infliction of emotional distress, or fraud. The plaintiffs in this case seek remedies unavailable to them in the probate appeals, and their claims fall within the jurisdiction of the Superior Court.
CONCLUSION
For the reasons set forth above, the defendant's motion to dismiss is denied.