Judicial District of Litchfield at Litchfield
CV-07-4006664-S – 2008 Conn. Super. LEXIS 1741
July 8, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS #109
Before the court is the defendant’s motion to dismiss on the grounds that this court lacks subject matter jurisdiction. The plaintiffs, Shirley Meyer, Doris Geer, and Mary Tino, filed a three-count revised complaint on January 25, 2008, against the defendants, William Peck, Barbara Hance, and Barbara H. Hance Associates, Inc. The complaint alleges the following: The plaintiffs are the nieces and heirs of the late Eugenia Laraia. The defendant William Peck is a certified public accountant, and is Trustee of the Eugenia J. Laraia Trust, which was established on February 22, 1995 and most recently amended on August 1, 2006. Also on August 1, 2006, Engenia Laraia executed a will, in which she gave the residue of her estate after payment of claims, taxes, expenses and fees, to the defendant as Trustee of the trust. The complaint alleges in count one that William Peck unduly influenced Eugenia Laraia into executing both the trust and the will. Count two alleges that the defendant Barbara Hance and Barbara H. Hance Associates, Inc., induced Eugenia Laraia to revoke a power of attorney to the plaintiff Shirley Meyer and induced Eugenia Laraia to execute a new power of attorney appointing Barbara Hance as attorney in fact. Count two further alleges that the defendant Barbara Hance used the power of attorney to benefit herself, her company and the defendant William Peck. Finally, the complaint alleges in the third count that the defendants arranged to have Eugenia Laraia moved to a convalescent home in Avon, Connecticut, to limit the plaintiffs’ access to her and facilitate the ability of the defendants to unduly influence her. The defendants then arranged to sell Eugenia Laraia’s residence to their financial benefit and the plaintiffs’ financial detriment. The complaint requests an order setting aside the trust, an order setting aside the will, an accounting, restitution of funds to the estate of the decedent, and any other relief that the court may deem appropriate.
Procedurally, this case comes before the court in a unique way. This is not a typical probate appeal in that the will was never submitted to probate. In place of the will, an affidavit for filing will not be submitted to probate was filed by the defendant William Peck. Therefore, the plaintiffs were unable to appeal from an order or decree of the Probate Court, as no such order or decree entered. The defendant argues that the Probate Court has primary jurisdiction over this dispute, and therefore this court does not possess subject matter jurisdiction. The plaintiffs counter that because the will was never admitted to probate, there was no order from which to appeal(fn1) to the Superior Court, and the Superior Court has jurisdiction. The defendants contend that the plaintiffs should have requested and then challenged an accounting, however the plaintiffs argue that they are not seeking to question any accounting, they are attacking the validity of the trust itself. The plaintiffs point to the Superior Court’s concurrent jurisdiction in support of its arguments.
Standard
“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.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). “Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.” St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). “Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . .” (Internal quotation marks omitted.) Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006).
“When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, 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.” (Internal quotation marks omitted.) Cox v. Aiken, supra, 278 Conn. 211.
Discussion
“Our legislature has consistently drafted legislation to state expressly when a court has exclusive jurisdiction. See, e.g., General Statutes §46b-42 (granting Superior Court exclusive jurisdiction over all complaints seeking dissolution of marriage, decree of annulment or legal separation); General Statutes §46b-212h(a) (granting family support magistrate division or Superior Court exclusive jurisdiction over child support orders); General Statutes §52-12 (granting Superior Court exclusive jurisdiction over sale of certain real property) . . .
“In contrast to courts of probate, [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; internal quotation marks omitted.) In re Joshua S., 260 Conn. 182, 214-15, 796 A.2d 1141 (2002). The Supreme Court has recognized that “there are three types of actions in which the Superior Court does not exercise original jurisdiction: those involving the custody of a child not the issue of the marriage involved in a divorce, settlement of an executor’s or administrator’s account, and the question of due execution of a will.” (Internal quotation marks omitted.) Id., 216.
“The Superior Court shall be the sole court of original jurisdiction for all causes of action, except such actions over which the courts of probate have original jurisdiction, as provided by statute.” General Statutes §51-164s. Probate courts generally have jurisdiction over matters involving the settlement of estates and the validity of wills. General Statutes §45a-98. “the Superior Court cannot exercise a primary jurisdiction which by the statute is reposed in the Courts of Probate.” First National Bank & Trust Co. v. McCoy, 124 Conn. 111, 115, 198 A. 183 (1938). “It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation . . . Our courts of probate have a limited jurisdiction and can exercise only such powers as are conferred on them by statute . . . They have jurisdiction only when the facts exist on which the legislature has conditioned the exercise of their power.” (Citations omitted; internal quotation marks omitted.) Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565, 192 A.2d 44 (1963).
General Statutes §45a-98 provides, in relevant part: “(a) Courts of probate in their respective districts shall have the power to . . . (2) admit wills to probate of persons who have died domiciled in their districts or of nondomiciliaries whose wills may be proved in their districts as provided in section 45a-287; (3) except as provided in section 45a-98a or as limited by an applicable statute of limitations, 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 trust, any decedent’s estate, or any estate under control of a guardian or conservator, which trust or estate is otherwise subject to the jurisdiction of the Probate Court, including the rights and obligations of any beneficiary of the trust or estate and including the rights and obligations of any joint tenant with respect to survivorship property; (4) except as provided in section 45a-98a, construe the meaning and effect of any will or trust agreement if a construction is required in connection with the administration or distribution of a trust or estate otherwise subject to the jurisdiction of the Probate Court, or, with respect to an inter vivos trust, if that trust is or could be subject to jurisdiction of the court for an accounting pursuant to section 45a-175, provided such an accounting need not be required . . . (6) to the extent provided for in section 45a-175, call executors, administrators, trustees, guardians, conservators, persons appointed to sell the land of minors, 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.
“(b) The 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.” General Statutes §45a-98a provides that “[t]he Probate Court shall have jurisdiction under subdivision (3) . . . of subsection (a) of section 45a-98 only if (1) the matter in dispute is not pending in another court of competent jurisdiction and (2) the Probate Court does not decline jurisdiction.”
In Dunham v. Dunham, 204 Conn. 303, 528 A.2d 1123 (1987), the plaintiff brought an action against the defendant, his brother, seeking, inter alia, to set aside the decree admitting the will of their mother to probate. A jury returned a verdict in favor of the plaintiff, finding the defendant guilty of exerting undue influence over the decedent. The defendant appealed, claiming error related to the issue of whether the defendant exercised undue influence over the decedent in preparing and securing her execution of the challenged will. The Supreme Court declined to review the defendant’s claims, noting that “neither this court nor the trial court has original subject matter jurisdiction to admit a will to probate or to entertain claims by parties contesting its admission. Ratter, the Probate Court, by virtue of its long-standing statutory authority, has exclusive subject matter jurisdiction over matters involving the validity of wills and the settlement of estates.” Dunham v. Dunham, 204 Conn. 303, 328, 528 A.2d 1123 (1987). The court concluded “[t]he proper place to address the merits of the issue of undue influence is in the Probate Court.” Id., 329.
In Hall v. Dichello Distributors, Inc., 6 Conn.App. 530, 536, 506 A.2d 1054 (1986), the Appellate Court held that “claims for registration of the stock, for retrospective status as a record holder of the stock, for an order concerning a shareholders’ meeting, and for injunctive relief clearly are beyond the jurisdiction of the Probate Court.” Hall v. Dichello Distributors, Inc., supra, 6 Conn.App. 536. In that case, the defendants, on appeal, challenged the Superior Court’s exercise of jurisdiction, claiming that the court lacked jurisdiction under General Statutes §45-4, now General Statutes §45a-98. The court noted that “[t]he fact that no other court has exclusive jurisdiction in any matter is sufficient to give the Superior Court jurisdiction of that matter.” (Internal quotation marks omitted.) Id., 535.
In Fogg v. Gardella, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 000072030 (February 20, 2003, Nadeau, J.) (34 Conn. L. Rptr. 194), the plaintiff sought “specific property” and an equitable remedy, imposition of a constructive trust until the court could determine the claim’s validity. The defendant filed a motion to dismiss on the grounds that primary jurisdiction belonged with the Probate Court and therefore the superior court did not have subject matter jurisdiction. The court found that it had subject matter jurisdiction, discussing the remedy requested and concluding “[t]his does not seem to be the sort of claim deemed to fall within the original jurisdiction of the Probate Court . . .” Fogg v. Gardella, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 000072030 (February 20, 2003, Nadeau, J.) (34 Conn. L. Rptr. 196). Thus, the court focused on the remedy requested in determining the nature of the action. The court cited In re Joshua S., supra, 260 Conn. 215, noting that “there are three types of actions in which the Superior Court does not exercise original jurisdiction: those involving the custody of a child not the issue of the marriage involved in a divorce, settlement of an executor’s or administrator’s account, and the question of due execution of a will.” Id., 197. Finding that the action before it did not fall into any of these categories, the court denied the defendant’s motion to dismiss. Id. (“this is not the type of claim over which Probate would have exclusive or original jurisdiction as the essence of the claim is not rooted in a custody battle, nor is it a request for an accounting of the assets being held within Helen’s estate, nor is the plaintiff asking the court to determine if the will was properly executed”).
In Smith v. Fitzgerald, Superior Court, judicial district of New London, Docket No. CV 04001122 (July 24, 2006, Jones, J.) (41 Conn. L. Rptr. 728), the plaintiff co-trustee filed an amended complaint against a co-trustee and the contingent remainderman of the trust in two counts: “(1) termination of the trust/sale of the res, and (2) removal of the co-trustee.” Smith v. Fitzgerald, Superior Court, judicial district of New London, Docket No. CV 04 001122 (July 24, 2006, Jones, J.) (41 Conn. L. Rptr. 728). The defendants subsequently filed cross complaints seeking the removal of the plaintiff as a trustee of the trust. The plaintiff filed a motion to dismiss the counter claims, arguing that the Probate Court had primary jurisdiction over actions to remove a trustee. Pointing out that the plaintiff was challenging the court’s jurisdiction to do exactly what the plaintiff was also asking the court to do, the court concluded that “an action to remove a trustee does not fall within any of the three specific areas dedicated to the original jurisdiction of the Probate Court.” Smith v. Fitzgerald, supra, 41 Conn. L. Rptr. 728.
In Daniels v. Herrscher, Superior Court, judicial district of New Haven, Docket No. CV 074025324 (December 10, 2007, Zoarski, J.T.R.), the plaintiff filed a thirteen-count complaint against the defendant executrix. The complaint alleged undue influence, conversion, statutory and civil theft, unjust enrichment, actual or constructive fraud perpetrated against the decedent, actual or constructive fraud perpetrated against the plaintiff, action for declaratory judgment, and negligence for breach of duty, breach of fiduciary duty by a person in a confidential relationship, breach of fiduciary duty by an executor, violations of General Statutes §42-110, et seq. (CUTPA), entitlement to costs and fees incurred to protect the assets of the estate for its creditors and beneficiaries and sought an accounting. The defendant moved to dismiss the complaint on the ground that the Superior Court lacked subject matter jurisdiction because original jurisdiction belonged solely to the Probate Court. The plaintiff argued that the Superior Court has jurisdiction over the matter because the types of claims and relief requested went beyond the authority of the Probate Court to provide. The defendant claimed that all of the plaintiff’s claims contained a common thread, namely challenging the inventory of the estate filed in Probate Court. Noting that the plaintiff “has not challenged the validity of the will itself” the court concluded that the “third avenue[_] to Probate Court jurisdiction . . . [was] unavailable.” Daniels v. Herrscher, Superior Court, judicial district of New Haven, Docket No. CV 07 4025324 (December 10, 2007, Zoarski, J.T.R.). The court found that “[j]urisdiction over this action does not reside exclusively with the Probate Court and it is properly before the Superior Court because the plaintiff seeks judicial action that is not necessary to settle the estate and relief that the Probate Court is not authorized to provide.” Id., (“the plaintiff alleges fraudulent conduct, conversion, unjust enrichment, theft, negligence, and breach of fiduciary duty by the defendant in both her individual and representative capacities and seeks, inter alia, compensatory money damages, punitive money damages, declaratory relief, injunctive relief, and the imposition of a constructive trust”).
Here, the plaintiffs are requesting an order setting aside the trust, an order setting aside the will, an accounting, restitution of funds to the estate of the decedent, and any other relief that the court may deem appropriate. Restitution “is [a]n equitable remedy under which a person is restored to his or her original position prior to loss or injury, or placed in the position he or she would have been, had the breach not occurred.” (Internal quotation marks omitted.) DeMattia v. Mauro, 86 Conn.App. 1, 11, 860 A.2d 262 (2004). “The authority of a Probate Court is not co-equal with that of the Superior Court when it is exercising its general equity powers . . .” Hall v. Dichello Distributors, Inc., supra, 6 Conn.App. 536. “Therefore, because the plaintiff’s claim involves a request for the imposition of an equitable remedy and does not fall within any of the three specific areas consigned to the Probate Court’s original jurisdiction, the Superior Court may properly exercise jurisdiction.” Fogg v. Gardella, supra, 34 Conn. L. Rptr. 197.
Accordingly, the defendants’ motion to dismiss for lack of subject matter jurisdiction is denied.
BY THE COURT,
Marano, J.
__________________________
Footnotes
1. General Statutes §45a-186 provides for appeals to the Superior Court by “any person aggrieved by any order, denial, or decree of a court of probate in any matter . . .”