Opinion
No. CV 09-403432S
March 16, 2010
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS
The motion before the Court by Attorney Barba is a Motion to Dismiss the appeal from Probate "for lack of subject matter jurisdiction. As a conserved person, the plaintiff, Patricia Wright-Kahn, has no standing to unilaterally initiate legal actions" — the legal action referred to being, of course, the appeal.
The Court will discuss the underlying facts of the litigation which do not appear to be disputed. The plaintiff filed complaints with the Commission on Human Rights and Opportunities (CHRO) — they were against Group Concepts Management, Savin Rock Condominium Association, and Milton Consiglio and others, one of them being the attorney filing this motion who apparently represented Mr. Consiglio.
By a complaint dated November 12, 2002 the CHRO brought actions against the three defendant groups pursuant to § 46a-83(d) and § 46a-89(b) of the General Statutes. The two complaints were assigned to the Housing court and later transferred to Superior Court; they were later consolidated on December of 2007.
On April 12, 2008 Attorney Barba filed an involuntary petition in Probate Court and Attorney Jamie Alosi was named as conservator. Attorney Couto was appointed to represent the plaintiff during the hearings on the petition. Attorney Barba basically presented the petition. The Court has read the Probate Court transcripts attached to the defendant's supplemental memorandum of law. In addition to the just mentioned lawyers and Ms. Wright-Kahn, an attorney for the CHRO and another defendant also spoke at these hearings.
A reading of the transcript indicates the plaintiff and Attorney Couto opposed the petition. The other attorneys spoke in favor of the conservatorship. It is fairly apparent from reading the transcripts that the position of these attorneys in advocating for the conservatorship was based not on a request that it was needed to manage the daily activities of the plaintiff but that it was based on their position that due to the plaintiff's mental health problems she was not able to understand and would not be able to manage the litigation in Superior Court or consider the possible advantages of settling the law suits. The lawyers representing the defendants, who were the subject of the plaintiff's complaints, concluded along with the CHRO attorney that the responsible or one can say ethical thing for them to do as officers of the court, would be to bring the matter to Probate Court for appointment of a conservator. It should also be noted that the CHRO attorney made clear during the probate court hearings that at any trial of the civil claims she would be representing the interests of the CHRO not the plaintiff.
In any event the Probate Court did appoint a conservator on April 10, 2008. Interestingly Judge Donegan tailored the conservatorship or at least the reasons for it to the defendant lawyer's reasons for requesting it. In his decision the Judge said:
The Court assigns to the conservator of the Estate of the conserved person, the power and authority to manage all substantive and procedural rights, duties, and authority that the respondent has in a civil action or actions pending on the Superior Court for New Haven County initiated by CHRO on behalf of the respondent including all authority to negotiate any settlement or resolution of these civil actions on behalf of the respondent and the authority to retain counsel to represent the interests of the respondent in the civil action or actions . . .
Judge Donegan went on to say that "The Court finds that the duties and authority given to the conservator of the Estate are the least restrictive means of intervention necessary to meet the needs of the conserved person."
In December 2008 the conservator, Attorney Jamie Alosi submitted an application to compromise the claim to the Probate Court and that court granted the application after a hearing.
On February 18, 2009 Ms. Wright-Kahn filed a pro-se appeal of the Probate Court's granting of the application to compromise the two and suits pending in Superior Court. The motion to dismiss this appeal which is now before the Court was filed on May 27, 2009. Attorney Philpot filed an appearance on behalf of the plaintiff Wright-Kahn on July 1, 2009, in opposition to the motion to dismiss. A supplemental motion to dismiss was then filed by the defendant Attorney Barber on November 2, 2009. The Court will now try to discuss the legal questions raised by the memorandums supporting and opposing the motion to dismiss in light of this complicated background.
It should be noted that no appeal was filed to the Superior Court concerning the appointment of a conservator and the time for doing so has long since passed.
1.
The defendant fairly and concisely sets forth the law on subject matter jurisdiction when it is raised by way of a motion to dismiss. The court will refer to some of the cases and their language which are cited by the defendant.
Once subject matter jurisdiction is raised the court must address it and the issue "must be passed upon before (the court) can move one further step in the cause (here the appeal)," Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 537 (2000). On the other hand when ruling on whether a complaint or an appeal such as this one "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," Windels v. E.P.A., 284 Conn. 268, 290 (2007). This observation is a subset of the broader proposition noted in Novak v. Levin, 287 Conn. 71, 79 (2008) to the effect that: "It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged."
In the court's opinion, the motion to dismiss raises that aspect of subject matter jurisdiction dealing with the issue of standing. The defendant basically argues that as a conserved person Ms. Wright-Kahn has no right to bring this appeal; she in effect is incompetent to do so. An attorney was retained by her after the appeal was filed, but he was not retained by the conservator but by the conserved person. The argument runs that "under the provisions of the appointment of the conservator" the plaintiff did not have the legal capacity to retain Attorney Philpot. And this will not support any claim she might have that she has standing to bring this appeal. All of this sounds like "standing." The court will quote from two cases making general remarks: St. George v. Gordon, 264 Conn. 538, 544 (2003): "The issue of standing implicates subject matter jurisdiction and is therefore a basis for a motion to dismiss. If there is no standing and thus subject matter jurisdiction, the court has no authority to hear and determine the case." To put it more exactly as it relates to this case: "When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of an issue." Smith v. Snyder, 267 Conn. 456, 460 (2004).
In regard to the issue of standing, this appeal from Probate was brought pursuant to § 45a-186 which states in relevant part "(a) Any person aggrieved by an 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 Kucej v. Kucej, 34 Conn.App. 579, 581-82 (1994) the court said:
The trial court does not have subject matter jurisdiction to hear an appeal from probate unless the person seeking to be heard has standing . . . In order for an appellant to have standing to appeal from an order or decree of the Probate Court, the appellant must be aggrieved by the court's decision. General Statutes § 45a-186 . . . Aggrievement as a concept of standing is a practical and functional one designed to assure that only those with a genuine and legitimate interest can appeal an order of the Probate Court . . . The question of [aggrievement] does not involve an inquiry into the merits of the case . . .
Aggrievement falls within two categories, classical and statutory . . . Classical aggrievement exists where there is a possibility, as distinguished from a certainty, that a Probate Court decision has adversely affected a legally protected interest of the appellant in the estate . . . Statutory aggrievement exists by legislative fiat which grants an appellant standing by virtue of particular legislation, rather than by judicial analysis of the particular facts of the case . . . It merely requires a claim of inquiry to an interest that is protected by statute.
Also see Marchentine v. Brittany Farms Health Center, Inc., 84 Conn.App. 486 (2004), which quoted Kucej at page 490.
One other matter must be discussed. At the end of his introductory comments, the defendant brief correctly points out that under our case law probate proceedings are not civil actions, Board of Education v. Tavares, 276 Conn. 544, 558 (2006) and the same can be said of appeals of probate orders and decrees to Superior Court, Slattery v. Woodin, 90 Conn. 48, 50 (1915). Silverstein's Appeal From Probate, 13 Conn.App. 45, 53-54 (1987) is cited that for the proposition "the Superior Court, while hearing appeals from probate, sits as a court of probate and not as a constitutional court of general common law jurisdiction. It tries the questions presented to it de novo, but in doing so it is . . . exercising a special and limited jurisdiction conferred on it by the statute authorizing appeals from probate," Slattery v. Woodin, supra at 50-51.
But the foregoing observations do not alter the fact the Superior Court itself must determine the ambit of the jurisdictional mandate given by the legislature to hear these appeals in the first place. Section 45-186a defines the scope of that mandate to hear appeals from probate as depending on aggrievement and the Superior Court determines whether that requirement has been met, Graham v. Estate of Graham, 2 Conn.App. 251, 254 (1984). "The matter of aggrievement goes to the jurisdiction of the Superior Court to hear appeals from probate." Maloney v. Taplin, 154 Conn. 247, 250 (1966), also see Lenge v. Goldfarb, 169 Conn. 218, 220 (1975), Doyle v. Abbenante, 89 Conn.App. 658, 661-64 (2005). A court itself must determine, and has the jurisdiction to determine, its own jurisdiction.
2.
Reading 45a-186 literally and under the concept of classic aggrievement discussed in cases like Kucej, it seems clear that the plaintiff is classically aggrieved by the order of the Probate Court accepting the application to approve the settlement. Her monetary interests represented by her claims in the civil actions clearly are affected by the decision of that court.
But in addressing the subject matter jurisdiction in this case a Superior Court cannot fail to take into account the statutorily authorized action of the Probate Court in having appointed a conservator as to those civil actions — a ruling by the Probate Court that was not appealed.
The defendant is quite correct in pointing out that the rights of a conserved person to exercise certain rights such as the right to enter into a contract or take an appeal are restricted by the fact of the conservatorship having been established. As stated in what is apparently an old Probate law standby:
When a conservator has been appointed by the Probate Court on an adjudication that a person is incapable of managing his affairs, its effect is to deprive that person of the possession of his (sic) property and to render him (sic) conclusively incapable of making valid contracts or conveyances in relation thereto while the conservatorship continues, Connecticut Probate Practice Locke and Kohn, § 650, page 913.
As to the right to appeal it has been held for example that generally a minor cannot appeal a court order regarding support, Newman v. Newman, 235 Conn. 82, 95-96 (1995). And as noted in Cottrell v. Conn. Bank Trust Co., 175 Conn. 257, 264 (1978) . . ."the legal disability of an incompetent is analogous to that of a minor." See Brown v. Eggleston, 53 Conn. 110, 119 2A 321.
But the question immediately arises as to the scope and nature of the conservatorship that was established. The probate court in its April 10, 2008 finding did conclude Ms. Wright-Kahn "had a mental condition that results in her being unable to receive and evaluate information to such an extent that the respondent is unable, even with appropriate assistance, to perform functions inherent in managing her affairs and that the respondent may have property that will be wasted or dissipated unless adequate property management is provided."
But then the court noted that the petitioner for the conservatorship has limited the request only to "the appointment of a conservator . . . (that) would be in control and manage the pending "civil actions in Superior Court." The court went on to say the hearing before it was solely limited to this issue. And the court explicitly said its finding was "not meant to address any other function or activities performed by the respondent in managing her affairs or property other than the management of the civil action" which was initiated by the CHRO for Ms. Wright-Kahn's benefit.
The order of the court establishing the conservatorship which had been previously quoted reflected the limited nature of the finding.
Nothing in the language of the Probate Court or the transcripts of the February 2008 hearing say anything about the prospective right of the plaintiff to appeal any acceptance by the court of an application of the conservator to settle the case or her right individually or by counsel she might retain to file that appeal.
But arguing against these observations which arguably would permit denial of the motion to dismiss without reaching the applicability Cottrell v. Conn. Bank Trust Co., 175 Conn. 257 (1978) and exceptions to its application, Lesnewsky v. Redvers, 276 Conn. 526 (2005), is perhaps the common sense observation that, if there is a finding of incompetency to manage and evaluate the issues that would be presented by the desirability of considering settlement of a complicated civil case or handling a trial, there would, a fortiori, be a necessary finding of incompetence as to the ability of the plaintiff to decide whether an appeal should be filed. The thought processes and skills that go into making that decision are directly related to whether the decision to settle was appropriate in the first place — i.e. any appeal, if successful would negate the settlement. Furthermore, any decision to settle must involve weighing and evaluating the risks and difficulties presented by having to try the case.
Also it is interesting to note that in the Probate Court's appointment of a conservator it was explicitly provided that the conservator could retain counsel if, presumably, the case had to be tried. This might be some indication of that court's view on the plaintiff's competence to hire counsel for any purpose including an appeal.
3.
In light of the foregoing, the court must now try to determine the bearing of Cottrell v. Conn. Bank Trust, 175 Conn. 257 (1978) and Lesnewski v. Redvers, 276 Conn. 526 (2005) on this matter. The Cottrell court said "The specific issue raised on appeal to this court is whether one who has been adjudicated incompetent and for whom both a guardian ad litem to represent her interests in connection with the settlement of an estate and a conservator to manage her own estate have been appointed by the Probate Court may appeal in her own name as an `aggrieved party' from a Probate Court order," Id., p. 259. Here the Probate Court appointed a lawyer to represent the plaintiff in the court hearings and a conservator as regards the civil suits pending in Superior Court.
The Cottrell court made various observations which are relevant to this case. It should be noted that the court equated the right or ability to bring suit to the right to take an appeal. It noted that the appointment of a guardian ad litem or a conservator "indicate a judgment that the plaintiff is incapable of managing her own affairs . . . and of representing her own interests. Until such determinations are changed the plaintiff may not bring suit, or in this case, bring an appeal, in her own behalf." Id., page 261. However, in language that presaged Lesnewski, the court went on to say that "the law does not deprive a person adjudicated incompetent of access to the courts in order to seek redress; rather, provision is made to ensure that such interests are well represented." Id., p. 262. But this was qualified by the observation that: "It should be remembered, however, that the purpose of authorizing a guardian ad litem is to ensure that the interests of the ward are well represented . . . Its purpose is not (quoting from a Utah case) "to burden or hinder them in enforcing their rights, nor to confer any privilege or advantage on persons who claim adversely to them. In order that this purpose be fulfilled, certain exceptional situations warrant, the allowance of suit on behalf of the incompetent by a next friend" (or the allowance of appeal by necessary logic), Id., pp. 263-64.
At the end of the opinion the court used language that was quite broad.
Although in the present case the interests of the plaintiff and those of the appointed guardian ad litem are not clearly antagonistic, and, indeed, the failure of the guardian ad litem to bring an appeal may well be in the plaintiff's best interest, a procedure initiated to protect her interests should not be utilized to hinder her in obtaining a review of any action involving her rights. Consequently, we hold that where, as here, those appointed to protect the interest of an incompetent fail to appeal from a decision in which the incompetent has a real interest, an action may be brought by a next friend in order that a court may review the substantive issues involved.Lesnewski defined questions not explored in Cottrell. It relied heavily on Newman v. Newman, 235 Conn. 82 (1995), a case involving a minor. Lesnewski characterized Cottrell as holding that that case authorized an appeal by a person found incompetent through a court appointed next friend. It framed the issue before it then as whether such a person could bring an appeal in her own name represented by counsel. At page 541 the Lesnewski court said: "Accordingly we conclude that the plaintiff in the present case may bring her appeal from the Probate Court's decree with just the representation of an attorney, if she can persuade the trial court, after a hearing, that such an appeal is in her best interest."
Also the court in Lesnewski held that an appeal brought by a person lacking legal capacity without a guardian's or next friend's aid involved "a question of `an amendable irregularity which could be waived," Id., page 531. As in Newman the court held that "requiring minors and thus incompetents to appeal through a guardian or next friend would elevate form over substance." Id., page 535. In this court's opinion and in light of the just mentioned reasoning it would equally elevate form over substance to require dismissal of this appeal because it was brought by the plaintiff in the first instance without the assistance of counsel. She has counsel now to pursue this appeal.
The point of Lesnewski is that an incompetent person like a minor must be able to enforce his or her rights and to not permit an order of the Probate Court directly affecting those rights to be appealed may allow those rights to go unprotected, cf language of court at 276 Conn. page 534.
Here there is ample reason to allow this appeal to go forward as long as the best interest test of Newman and now Lesnewski is applied. The court in no manner suggests a criticism of the respected and experienced attorneys who brought and/or supported the establishment of a conservatorship in the first place. They may have had an ethical obligation to do so. Nor does the court criticize their efforts to have the Probate Court approve the Conservator's application to have the case settled. But the fact remains that they represent defendants in the civil action brought in the plaintiff's behalf. The conservator appointed by the court cannot be expected to appeal the Probate Court's decision to accept her application to settle the case. At any trial that might have occurred, absent a settlement, the attorney representing the CHRO would have represented the CHRO's interests. All of these attorneys participated in the hearing held to determine whether the application for settlement should be approved. The only opposition to the settlement came from an attorney appointed to represent the plaintiff who was not authorized to appeal.
The court therefore, in light of Lesnewski, under the circumstances of this case, concludes the plaintiff through her attorney should be afforded the opportunity to persuade the court that it is in her best interest to go forward with this appeal. Id., page 537 and will not now grant the motion on subject matter jurisdiction grounds.
It might be advisable for counsel to meet with the court to determine the ambit of any best interest hearing. In this regard the court would call attention to the language of Lesnewski at the bottom of page 542 through page 544.