2004 Ct. Sup. 1853
No. CV 03-0825345 SConnecticut Superior Court, Judicial District of Hartford at Hartford
February 9, 2004
MEMORANDUM OF DECISION ON DEFENDANTS’ MOTIONS TO DISMISS
RITTENBAND, JUDGE TRIAL REFEREE.
By Amended Complaint dated June 11, 2003, the plaintiff brought a sixteen-count complaint against the above-named defendants. At the same time or shortly thereafter, said defendants each filed separate motions to dismiss. Their claims are, inter-alia, that the plaintiff is not the proper party to bring this action and that the only party entitled to bring such an action is the executor, executrix, administrator or administratrix of the decedent’s Estate of Marcia Generis. As to that issue, the parties have agreed that there is no Connecticut appellate law on this issue, and, therefore, this is a case of first impression.
FACTS
Marcia Generis (“Marcia”) died on May 4, 1997. James Generis (“James”), a son of Marcia, was Executor of Marcia’s will and the Executor of the Estate of Marcia Generis (the “Estate”). James died on August 31, 2001 and was succeeded as Administrator of the Estate by Attorney Christopher Stone of East Hartford, Connecticut. The beneficiaries of the Estate were James and the Marcia K. Generis Trust which Trust was created on October 10, 1995. Thomas Generis (“Thomas”) was the sole beneficiary of said trust. Upon the death of James, Priscilla Dickman (“Dickman”) was appointed Successor Trustee of the Trust on January 25, 2002. Bridget Generis (“Bridget”) was the wife of James who was appointed Executrix of James’ will.
The Amended Complaint alleges as follows:
1. As to Bridget Generis, Individually,
Count One: Conversion CT Page 1854
Count Two: Forgery
Count Three: Theft
Count Four: Civil Conspiracy
Count Five: Aiding and Abetting a Breach of Fiduciary Duty
Count Six: Unjust Enrichment
Count Seven alleges a Constructive Trust; Count Eight — Negligence as to Webster Bank; Count Nine — Aiding and Abetting Breach of Fiduciary Duty as to Webster Bank; Count Ten — CUTPA as to Webster Bank; Count Eleven — Breach of Contract as to Webster Bank; Count Twelve — Breach of the Implied Covenant of Good Faith and Fair Dealing as to Webster Bank; Count Thirteen — Breach of Contract as to MetLife Securities, Inc.; Count Fourteen — Breach of the Implied Covenant of Good Faith and Fair Dealing as to MetLife Securities, Inc.; Count Fifteen — Breach of Contract as to Advest, Inc.; and Count Sixteen — Breach of the Implied Covenant of Good Faith and Fair Dealing as to Advest, Inc.
The counts allege fraud and conversion by James Generis as Fiduciary of the Estate of Marcia Generis and as Trustee of the Marcia K. Generis Trust, fraud and conversion against Bridget individually and negligence and fraudulent conspiracy to accomplish breach of fiduciary duties by the various financial institutions.
STANDARD OF REVIEW
A motion to dismiss is the appropriate vehicle for challenging the jurisdiction of the court. Zish v. Water Pollution Control Authority, 195 Conn. 682, 687 (1985). “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.”State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 298 (1987). Whenever a court lacks jurisdiction over the subject matter, the court shall dismiss the action. Connecticut Practice Book § 10-33.
FINDINGS
CT Page 1855 1. Does the Plaintiff Have Standing to Sue?
The short answer to this question is yes. Defendants claim that legal title to all personal property of a decedent, including choses in action (this would include claims against the various financial institutions) vests in the administrator or executor of the decedent’s estate. Lynch v. Skelly, 138 Conn. 376, 379
(1951).
Therefore, they claim that it is only the administrator/administratrix or executor/executrix who could bring the instant suit. As a general rule, they are correct. However, there is an exception to this rule that although it has not necessarily been recognized by our Appellate or Supreme Courts, there are legitimate reasons for an exception. “[A]fter distribution, however, the action is by the beneficiaries and even before distribution the beneficiaries have some standing” to recover personalty belonging to the Estate. GAYLE B. WILHELM, SETTLEMENT OF ESTATES IN CONNECTICUT 2D. § 8:349 (2002). “[T]he heirs or legatees have a legitimate interest in preventing the improper diversion of estate assets. Therefore, beneficiaries are proper parties . . . to any action to recover estate assets.”Id. § 8:350. Additionally there is an exception where there has been fraud, collusion or refusal to sue on the part of the administrator/administratrix or executor/executrix, or where the interests of the personal representatives are antagonistic to those of the heirs or distributees. This exception is set forth in 26A C.J.S. Descent and Distribution Sec. 90. Also, see 31 Am.Jur.2d.; Executors and Administrators, Sec. 1285. This Court finds, in the case at bar, that this exception is applicable. Much has been made by the defendants as to whether or not the administrator refused to sue the various defendants in this action, and if he did not, this exception does not apply. However, the Amended Complaint is replete with claims of fraud and collusion and instances where the interests of the administrator/administratrix or executor/executrix are antagonistic to those of the heirs or distributees. Paragraph 19 of the First Count alleges that Bridget wrongfully appropriated dividends and personal property; Count Two alleges Forgery against Bridget; Count Three — Theft against Bridget and James with money going to Bridget upon James’ death; Count Four alleges Conspiracy against James and Bridget; Count Five — Aiding and Abetting Breach of Fiduciary Duty; and against the financial institutions there are allegations of negligence as well as acts which were willful, wanton and intentional, and exhibit a CT Page 1856 reckless indifference to the rights of Marcia and her estate.
(Emphasis added). There are further allegations of violation of the Connecticut Unfair Trade Practices Act. Certainly, therefore, the Amended Complaint’s allegations, taken in a light most favorable to the plaintiff in a motion to dismiss, allege fraud and collusion. Therefore, the aforementioned exception is clearly applicable to the Amended Complaint. On this basis, the plaintiff has standing and the Motion to Dismiss is denied.
2. Are the Defenses of Res Judicata Or Collateral Estoppel Applicable to this Motion to Dismiss?
The short answer to this question is no. Neither res judicata nor collateral estoppel implicate a court’s subject matter jurisdiction. Rosenfield v. McCann, 33 Conn. App. 760, 762
(1994). Res judicata and collateral estoppel must be pleaded as special defenses. Ramsdell v. Union Trust Co., 202 Conn. 57, 65
(1987). Accordingly, defendants’ claims of res judicata and/or collateral estoppel are not applicable to a motion to dismiss.
3. Did the Plaintiff Have to Appeal the Probate Court’s Order Failing Which It Could Not Bring this Separate Action?
Defendants claim that C.G.S. § 45a-186 requires the plaintiff to have appealed the actions of the Probate Court. This Court is not persuaded. As plaintiff’s attorney points out, the controlling case on this issue is Lenge v. Goldfarb, 169 Conn. 218, 221, 223 (1975). In that case, the issue was 960 shares of stock and whether it was an asset of the estate. The plaintiff claimed that the decedent had given said stock to her as a gift, and the administrator of the estate denied this allegation. The Probate Court ordered the administrator to file a supplemental inventory listing said stock as an asset of the estate. The plaintiff appealed this order to the Superior Court. The Superior Court sustained the appeal, and the defendant, the widow of the decedent, appealed to the Supreme Court. The Supreme Court stated that she was not aggrieved because her pecuniary interests in the shares of stock were not adversely affected by the order for the supplemental inventory and ordered the Superior Court to dismiss the appeal for lack of jurisdiction. The court stated in pertinent point: “it is well established that the mere inventorying of an estate has no effect upon the rights of an adverse claimant . . . A Probate Court has no power to make final determination of title where title is disputed. It may make such incidental determinations of questions of title as are necessary CT Page 1857 to enable it to carry out its statutory duties; but such determinations have no res judicata effect and are not binding upon the adverse claimants. Questions of title, not incidental to a Probate Court’s statutory duties, are left for courts of general jurisdiction to resolve in ordinary actions at common law.” In Lenge, the court went on to say, “The nub of the controversy is a final determination of title to the 960 shares which, as we have noted, can be resolved only in an action brought in a court of general jurisdiction . . . The mere listing of a questionable asset upon an inventory is not binding upon adverse claimants, nor is the failure to list an asset an obstacle to bringing an action to claim that asset,” citin Lynch v. Skelly, id. 223, supra (emphasis added). Based upo Lenge v. Golfarb (research has determined that it has not been overruled and is still good law), this Court finds that bringing an appeal of the Probate Court’s determination as to the choses in action not being in the inventory would have been fruitless because the Probate Court would not have had jurisdiction.
Accordingly, in accordance with Lenge, the failure to appeal the Probate Court decision does not preclude the instant action.
CONCLUSION
For the foregoing reasons, the defendants’ Motions to Dismiss are denied.
Rittenband, JTR. CT Page 1858