KAREN ABBOT ET AL. v. AMELLIN, EXECUTOR (ESTATE OF JAMES A. AMELLIN).

2005 Ct. Sup. 10825, 39 CLR 510
No. CV 04 4004965 SConnecticut Superior Court Judicial District of New Haven at New Haven
May 25, 2005

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE MOTION TO DISMISS #101
LOPEZ, JUDGE.

The question before the court is whether the plaintiffs’ appeal from probate should be dismissed for lack of subject matter jurisdiction due to their failure to file reasons of appeal, pursuant to Practice Book § 10-76.

On October 27, 2004, the plaintiffs, Karen Abbot, Carol Caggiano and Deanne Spencer, filed a motion for appeal from probate against the defendant, Frances Amellin. Therein, the plaintiffs allege the following facts. The plaintiffs are heirs at law of the decedent James Amellin. On October 4, 2004, the Probate Court ordered and decreed that Frances Amellin be appointed fiduciary and excused her from giving bond. The plaintiffs object to the appointment of Frances Amellin as fiduciary, to her service without bond and to the admission of the will to probate. The plaintiffs further allege that they “are aggrieved by this order and decree.” The decree set the return date of the appeal as November 30, 2004.

On January 6, 2005, the defendant filed a motion to dismiss the appeal on the ground that the plaintiffs failed to file reasons of appeal as required by Practice Book § 10-76,[1] thereby depriving the court of subject matter jurisdiction. The defendant has submitted a memorandum of law in support of the motion.

On January 18, 2004, the plaintiffs filed a reasons of appeal including a copy of the decedent’s will. On March 2, 2005, the plaintiffs filed a memorandum of law in opposition to the defendant’s motion to dismiss in which they counter that their failure to file reasons of appeal in accordance with Practice Book § 10-76 does not deprive the court of subject matter jurisdiction. They further argue that the failure to file reasons of appeal, “particularly after they have now been filed, can CT Page 10826 serve only as the basis for a motion to strike, with the right of a party to plead again, if sustained.” The matter was heard on the short calendar on March 7, 2005.

“Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction. Practice Book § 10-31(a) provides in relevant part: `[A] motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . .'” St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). “Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy . . . [O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case . . . If it becomes apparent to the court that such jurisdiction is lacking, the appeal must be dismissed.” (Internal citation omitted; internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211(2004). “The burden rests with the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.” (Internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791
(2004).

“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,)In re the Adoption of Baby Z., 247 Conn. 474, 478 n. 5, 724 A.2d 1035 (1999). An appeal from probate is governed by General Statutes § 45a-186 et seq.[2] Pursuant to General Statutes § 45a-191 “[i]n each appeal from probate . . . 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.”

Practice Book § 10-76 provides that those making an appeal from probate “shall file reasons of appeal . . . within ten days after the return day.” The defendant urges the court to construe the CT Page 10827 word `shall’ as mandatory rather than directory. “In construing statutes, our Supreme Court has not consistently interpreted `shall’ as a mandatory command.” Shafer v. Reilly, Superior Court, judicial district of New Haven, Docket No. CV 03 04805262 (May 27, 2004, Devlin, J.) (37 Conn. L. Rptr. 183). “At the outset it must be recognized that the issue involves a Practice Book rule promulgated by the judges of the Superior Court, and not a statute. The rules of statutory construction, however, are clearly applicable.” State v. Cook, 183 Conn. 520, 521 (1981)441 A.2d 41.

Regarding the construction of the word `shall’ our Supreme Court has stated: “In answering this question, we are guided by past cases construing the legislature’s use of the term `shall.'” “In determining whether the use of the word `shall’ is mandatory or directory, the test is whether the prescribed mode of action is of the essence of the thing to be accomplished . . . That test must be applied with reference to the purpose of the statute.” (Citations omitted; internal quotation marks omitted.)Sears, Roebuck and Company v. Board of Tax Review, 241 Conn. 749, 760 (1997) 699 A.2d 81.

The purpose of § 10-76 is to provide an aggrieved party with the right to take an appeal from an order of the probate court. Reasons of appeal, however, are filed after the appeal has been taken and serve to provide notice of the issues in dispute. Our trial courts have determined that “untimeliness [in filing reasons of appeal] does not deprive [the Superior Court] of jurisdiction. Greten v. Estate of Mack, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 030285543 (May 11, 2004, Tanzer, J.) (37 Conn. L. Rptr. 166); se Barlow v. Pocsay, 21 Conn.Sup. 352, 354, 154 A.2d 753
(1959).[3] Depriving an aggrieved party of his/her right of appeal because of the untimely filing of a pleading would, in this court’s estimation, elevate form over substance.

“The plaintiff’s failure to state such reasons might in some instances render his appeal subject to being [stricken], but dismissal is not proper unless it is undisputed as a question of fact that such reasons do not exist. The Superior Court is authorized, and in some situations required, to make that factual inquiry.” Baskin’s Appeal from Probate, 194 Conn. 635, 641 n. 9, 484 A.2d 934 (1984). In one case where the plaintiff did not file reasons of appeal, the “court was compelled to resort to the motion for appeal, supplemented by the evidence presented on the CT Page 10828 trial, to determine just what were the issues of fact involved in the case.” Nickerson v. Griffing, 139 Conn. 720, 726, 97 A.2d 559 (1953). “A motion to dismiss should not be granted unless it is undisputed that the reasons to support the plaintiff’s claim for relief do not exist.” Carl J. Herzog Foundation, Inc. v. University of Bridgeport, 41 Conn.App. 790, 803, 677 A.2d 1378
(1996), rev’d on other grounds, 243 Conn. 1, 699 A.2d 995 (1997).

In the present case, although the plaintiffs failed to file reasons of appeal within the required ten days after the return date (November 30, 2004), they did so on January 18, 2005. Therefore, this case does not meet the standard set out i Baskin’s Appeal From Probate, supra, 194 Conn. 641 n. 9, because here, it is not “undisputed . . . that [the reasons of appeal] do not exist.” Id. Accordingly, the tardiness of the plaintiffs’ filing does not deprive the court of subject matter jurisdiction.

The motion to dismiss is denied.

[1] Practice Book § 10-76 provides: “Probate Appeals; Reasons of Appeal. (a) Unless otherwise ordered, in all appeals from probate the appellant shall file reasons of appeal, which upon motion shall be made reasonably specific, within ten days after the return day; and pleadings shall thereafter follow in analogy to civil actions. (b) Appellees opposing the probate of a will shall specifically deny such of the reasons of appeal as they intend to controvert and affirmatively allege any other grounds upon which they propose to rely. (c) The appellant in appeals involving the probate of a will shall file, with the reasons of appeal, a copy of the will. (See General Statutes §§ 45a-186 to 45a-193.)”
[2] 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 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 . . .”

CT Page 10829

[3] See also Burlingame v. Abbe, Superior Court, judicial district of Windham at Putnam, Docket No. 04 0072307 (September 8, 2004, Foley, J.); Torrance v. Torrance, Superior Court, judicial district of New Britain, Docket No. 03 0520882 (October 26, 2003, Robinson, J.) (35 Conn. L. Rptr. 681); Fischer v. Estate of Mansi, Superior Court, judicial district of New Haven, Docket No. 97 0404153 (January 6, 1999, Fracasse, J.) (21 Conn. L. Rptr. 289); Foster v. Appeal from Probate, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 97 341297 (October 23, 1998, Stodolink, J.); In re Stephanie A.,
Superior Court, judicial district of Hartford at Plainville (June 4, 1997, Wiese, J.) (21 Conn. L. Rptr. 74); Rizzo v. Estate of Magnano, Superior Court, judicial district of Middlesex, Docket No. 67079 (August 12, 1993, Higgins, J.) (8 C.S.C.R. 933) (9 Conn. L. Rptr. 545); Frank v. Estate of Frank, Superior Court, judicial district of Middlesex, Docket No. 66226 (December 22, 1992, Walsh, J.) (8 Conn. L. Rptr. 118); Mayo v. Olmstead,
Superior Court, judicial district of Litchfield, Docket No. 055526 (August 26, 1991, Pickett, J.) See also Author’s Comment, Practice Book Annotated Superior Court Rules § 10-76

CT Page 10830