2010 Ct. Sup. 11808
No. CV 09 4008256SConnecticut Superior Court Judicial District of Litchfield at Litchfield
June 2, 2010
MEMORANDUM OF DECISION
ROCHE, J.
ISSUE
The issue is whether the court should grant William Saas, Sr.’s motion to dismiss as it relates to the claims of Hilary Kawecki, the conservator of the person of Dr. Sophie Trent-Stevens, who is one of the plaintiffs.
FACTS
On March 27, 2009, the plaintiffs, Hilary Kawecki and Renee Fahey-Gentile, filed a six-count complaint against the defendants, William J. Saas, Sr. and William J. Saas, Jr. In count one, which is a breach of fiduciary duty claim, the plaintiffs allege the following facts. Fahey-Gentile is the duly appointed conservator over the estate of Dr. Sophie Trent-Stevens by virtue of a June 30, 2008 decree from the Meriden Probate Court, and Kawecki is the duly appointed conservator of the person of Dr. Sophie Trent-Stevens by virtue of an August 20, 2007 decree from the same court. Saas, Jr. was the appointed conservator of Trent-Stevens’ estate from November 15, 2006, to June 23, 2008, and he is the son of Saas, Sr., a certified public accountant. The defendants led the plaintiffs and Trent-Stevens to believe that Saas, Jr. was a member of Saas, Sr.’s accounting firm and that the defendants were competent and qualified to manage Trent-Stevens’ estate. Saas, Jr. was employed by his father during his tenure as conservator of the estate. Both defendants attended Probate Court hearings and assumed responsibilities with regard to the estate, and Saas, Sr. represented that Saas, Jr. had complied with proper accounting and inventory procedures of the assets. Saas, Sr.’s representations led the plaintiffs to believe that he was assisting and supervising Saas, Jr. and that Saas, Jr. was an accountant.
The plaintiffs allege, inter alia, that the defendants have breached and continue to breach their fiduciary duties as a result of CT Page 11809 their failure to safeguard and account for Trent-Stevens’ assets as ordered by the Probate Court and pursuant to their obligations under General Statutes § 45a-655. The plaintiffs also allege excessive and abusive fees, conversion of assets, failure to comply with legal process, illegal investments, misuse of funds and failure to supervise and manage. Counts two and three allege conversion and bad faith, respectively. Both counts incorporate the earlier allegations and allege additional failures with regard to the defendants’ actions relative to Trent-Stevens’ estate. Count four alleges fraud and misrepresentation, count five alleges unfair trade practices and count six alleges malpractice against Saas, Sr. The plaintiffs seek money damages, compensatory damages, punitive damages under counts one through four and pursuant to General Statutes § 42-110g(a), treble damages pursuant to General Statutes § 52-564, reasonable attorneys fees pursuant to General Statutes § 42-110g(d), an accounting and receivership of all assets and any other equitable relief.
After the defendants’ motion to transfer venue was denied without prejudice, the plaintiffs’ objections to the defendants’ request to revise were sustained and the defendants’ motion to strike was denied, the defendants filed an answer and special defense on February 16, 2010. In their sole special defense, the defendants assert that “the plaintiff, Hilary Kawecki . . . as conservator of the person has no standing to commence or maintain this lawsuit.” Thereafter, the plaintiffs filed a motion to strike the defendants’ special defense, arguing that such a challenge must be raised on a motion to dismiss or on a motion to strike.
On March 10, 2010, Saas, Sr. filed the motion to dismiss that is presently before the court. On March 17, 2010, the plaintiffs filed a memorandum in opposition to the motion to dismiss, and on March 23, 2010, Saas, Sr. filed a reply memorandum. Saas, Sr. also filed a supplemental memorandum in support of the motion to dismiss on April 6, 2010. This matter was heard at the short calendar on April 5, 2010.
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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008) R.C. Equity Group, LLC v. CT Page 11810 Zoning Commission, 285 Conn. 240, 248, 939 A.2d 1122 (2008). Practice Book § 10-31 provides in relevant part: “(a) The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . . “The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.” (Internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009). “[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 subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings . . .” Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). “It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged . . .” (Internal quotation marks omitted.) Massey v. Branford, 119 Conn.App. 453, 458, 988 A.2d 371 (2010).
“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . 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 the issue. . . . Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury [that he or she has suffered or is likely to suffer]. Similarly, standing exists to attempt to vindicate arguably protected interests . . .
“Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally CT Page 11811 protected interest . . . has been adversely affected.” (Internal quotation marks omitted.) Id., 458-59.
In his motion to dismiss, Saas, Sr. argues that Kawecki lacks standing in this action, and therefore, the court is deprived of subject matter jurisdiction over Kawecki’s claims. Specifically, Saas, Sr. asserts that because the complaint alleges that Kawecki is conservator of Trent-Stevens’ person and not her estate, Kawecki lacks standing because the complaint deals with claims related to the estate, not claims related to the person, and the plain meaning of General Statutes §§ 45a-655 and 45a-656 indicate a legislative intent to limit the right to sue to the conservator of the estate in such instances. As a result, Saas, Sr. argues that only Fahey-Gentile is authorized to bring the present complaint.
In their memorandum in opposition to the motion to dismiss, the plaintiffs argue that Kawecki does not need specific statutory authority to act in concert with Fahey-Gentile to represent Trent-Stevens’ “personal interest and the interest of her [e]state.” Moreover, the plaintiffs argue that “[c]onstitutional due process and access to the courts is not divisible between personal rights and property rights.”[1]
As to the specific statutes at issue, the plaintiffs argue that §45a-656(a), which outlines the duties of a conservator of a person, provides that such a conservator has “(5) the duty to take reasonable care of the conserved person’s personal effects.” The plaintiffs argue that jewelry falls within the definition of “personal effects,” and the complaint alleges that the defendants converted Trent-Stevens’ jewelry. As a result, the plaintiffs argue that Kawecki is a proper plaintiff. As to the conservator of the estate statute, § 45a-655, the plaintiffs argue that it “does not exclusively authorize the conservator of the ward’s [e]state to sue for and collect all debts due to the ward. The statute is precatory (may sue), and is not mandatory, in exclusion of the conservator of the person’s right to sue. If the two statutes were to be interpreted to disallow the ward’s personal interest to be represented in the captioned litigation by the conservator of her person, such prohibition would clearly be unconstitutional.”[2]
In reply, Saas, Sr. reiterates his original arguments and asserts that the plaintiffs have barely addressed the issue of standing in their memorandum. Moreover, Saas, Sr. argues that the plaintiffs have failed to plead statutory aggrievement as to Kawecki and that classical aggrievement is also lacking because Kawecki does not have the authority to act with regard to the claims at issue in the complaint.[3] In a supplemental brief filed on April 5, 2010, Saas, Sr. attempts to refute CT Page 11812 much of the case law relied on by the plaintiffs in their memorandum in opposition to the motion to dismiss.
“A conservator is a fiduciary . . .” Marcus’ Appeal from Probate, 199 Conn. 524, 533, 509 A.2d 1 (1986). “[A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other.” (Internal quotation marks omitted.) Murphy v. Wakelee, 247 Conn. 396, 400, 721 A.2d 1181 (1998). “A conservator [however] has only such powers as are expressly or impliedly given to him by statute.” (Internal quotation marks omitted.) Id., 406. “The statutory duties of a conservator are clearly defined in General Statutes § 45a-655, which delineates the duties of a conservator of the estate, and General Statutes § 45a-656, which prescribes the duties of a conservator of the person.” (Emphasis in original.) Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore, 257 Conn. 531, 539-40, 778 A.2d 93 (2001).
General Statutes § 45a-644(a) defines “conservator of the estate” as: “a person, a municipal or state official, or a private profit or nonprofit corporation except a hospital or nursing home as defined in section 19a-521, appointed by the Court of Probate under the provisions of sections 45a-644 to 45a-663, inclusive, to supervise the financial affairs of a person found to be incapable of managing his or her own affairs or of a person who voluntarily asks the Court of Probate for the appointment of a conservator of the estate, and includes a temporary conservator of the estate appointed under the provisions of section 45a-654.” Section 45a-644(d) states that: “`Incapable of managing his or her affairs’ means that a person has a mental, emotional or physical condition that results in such person being unable to receive and evaluate information or make or communicate decisions to such an extent that the person is unable, even with appropriate assistance, to perform the functions inherent in managing his or her affairs, and the person has property that will be wasted or dissipated unless adequate property management is provided, or that funds are needed for the support, care or welfare of the person or those entitled to be supported by the person and that the person is unable to take the necessary steps to obtain or provide funds needed for the support, care or welfare of the person or those entitled to be supported by the person.” Finally, § 45a-644(j) defines “property management” as the “actions to (1) obtain, administer, manage, protect and dispose of real and personal property, intangible property, business property, benefits and income, and (2) deal with financial affairs,” respectively.
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General Statutes § 45a-655(a) elaborates on the duties of a conservator of the estate and provides: “A conservator of the estate appointed under section 45a-646, 45a-650 or 45a-654 shall, within two months after the date of the conservator’s appointment, make and file in the Court of Probate, an inventory, under penalty of false statement, of the estate of the conserved person, with the properties thereof appraised or caused to be appraised, by such conservator, at fair market value as of the date of the conservator’s appointment. Such inventory shall include the value of the conserved person’s interest in all property in which the conserved person has a legal or equitable present interest, including, but not limited to, the conserved person’s interest in any joint bank accounts or other jointly held property. The conservator shall manage all the estate and apply so much of the net income thereof, and, if necessary, any part of the principal of the property, which is required to support the conserved person and those members of the conserved person’s family whom the conserved person has the legal duty to support and to pay the conserved person’s debts, and may sue for and collect all debts due the conserved person. The conservator shall use the least restrictive means of intervention in the exercise of the conservator’s duties and authority.”
In contrast, § 45a-644(b) defines “conservator of the person” as: “a person, a municipal or state official, or a private profit or nonprofit corporation, except a hospital or nursing home as defined in section 19a-521, appointed by the Court of Probate under the provisions of sections 45a-644 to 45a-663, inclusive, to supervise the personal affairs of a person found to be incapable of caring for himself or herself or of a person who voluntarily asks the Court of Probate for the appointment of a conservator of the person, and includes a temporary conservator of the person appointed under the provisions of section 45a-654.” Section 45a-644(c) states that “`[i]ncapable of caring for one’s self’ or `incapable of caring for himself or herself’ means that a person has a mental, emotional or physical condition that results in such person being unable to receive and evaluate information or make or communicate decisions to such an extent that the person is unable, even with appropriate assistance, to meet essential requirements for personal needs.” Finally, § 45a-644(i) defines “personal needs” as “the needs of a person including, but not limited to, the need for food, clothing, shelter, health care and safety.”
General Statutes § 45a-656(a) elaborates on the duties of a conservator of the person and provides: “The conservator of the person shall have the duties and authority expressly assigned by the court pursuant to section 45a-650, which duties and authority may include: (1) The duty and responsibility for the general custody of CT Page 11814 the conserved person; (2) the authority to establish the conserved person’s residence within the state, subject to the provisions of section 45a-656b; (3) the authority to give consent for the conserved person’s medical or other professional care, counsel, treatment or service; (4) the duty to provide for the care, comfort and maintenance of the conserved person; and (5) the duty to take reasonable care of the conserved person’s personal effects.”
In Connecticut, statutory construction is governed by the plain meaning rule, which is codified in General Statutes § 1-2z. Section 1-2z
provides: “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”
Although one party is often appointed as both conservator of the person and conservator of the estate, the court in the present matter is faced with a situation where two persons are serving individually in separate conservator roles. Kawecki is the conservator for Trent-Stevens’ person, while Fahey-Gentile is the conservator for Trent-Stevens’ estate. Since the complaint at issue is brought against the former conservators of Trent-Stevens’ estate and relates to their alleged mismanagement of her estate, the court is forced to determine whether Kawecki is a proper plaintiff as the conservator of Trent-Stevens’ person or whether she lacks standing.
As to the first question of Kawecki’s statutory aggrievement, the statutes recited in the present matter indicate that the conservator of the estate’s role is largely related to the conserved person’s finances, while the conservator of the person’s role is largely related to the conserved person’s care and safety. Although the statutes do not expressly preclude a conservator of the person from filing a lawsuit that relates to the conserved party’s estate, § 46a-655(a) expressly authorizes the conservator of the estate to sue for and collect all debts due to the estate, while the comparable statute does not provide such authority to the conservator of the person. As previously noted, the relevant case law provides that conservators are only given power that is expressly or implicitly provided by statute. When read together, the statutes at issue imply that Fahey-Gentile, as conservator of the estate, has the express authority to bring actions like the present matter, while Kawecki does not have such authority.[4]
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Moreover, although the plaintiffs argue that the complaint includes a claim that the defendants converted Trent-Stevens’s jewelry, and jewelry falls within the definition of “personal effects” in § 45a-656(a), thereby making the conservator of the person a proper plaintiff, this argument is also unpersuasive. The statute does not define “personal effects.” While jewelry may fall within a definition of “personal effects,” jewelry may also fall within the definition of “personal property,” over which the conservator of the estate has authority. Furthermore, the fact that there is a claim against the former conservators of the estate that relates to the conversion of jewelry suggests that the conservator of the estate is the conservator that has control over such property in the present matter. For these reasons, the court concludes that Kawecki does not have the statutory authority to bring the present action.
Finally, for many of the foregoing reasons, the court also concludes that Kawecki is not classically aggrieved. As to the question of whether Kawecki has a specific personal and legal interest in the subject matter of the action, the court has already concluded that the relevant statutes do not provide Kawecki with any legal interest in Trent-Stevens’ estate, and the subject matter of the present action relates to the estate’s claims. Thus, Kawecki lacks a legal interest in the subject matter. Additionally, Kawecki does not have an interest that has been injuriously affected. Since Kawecki’s role as conservator of the person relates to Trent-Stevens’ care and safety and does not relate to the management of her estate, she cannot claim an injury as conservator of the person.
For all of these reasons, the court concludes that the plaintiffs have not met their burden of establishing Kawecki’s standing. As a result, Saas, Sr.’s motion to dismiss against Kawecki is granted.
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