19 Conn. App. 413 | Conn. App. Ct. | 1989
This is a suit based on a contract to purchase real estate from an estate, entered into between the plaintiffs and one of the defendants, the former administrator of the estate. Subsequent to the contract, the decedent’s will was admitted to probate. The other defendants are various executors and successor executors of the estate. The suit is in five counts: one count for specific performance of a contract; two counts claiming damages for an alleged breach of a duty of the defendants to submit the contract to the Probate Court for approval; one count for damages based on promissory estoppel; and one count for an injunction to require the defendants to submit the contract to the Probate Court for approval. The defendants had raised numerous special defenses, among them that the court lacked subject matter jurisdiction based on General Statutes § 47-33a.
The court erred in rendering a summary judgment based on what it considered to be an oral motion for summary judgment raised during the argument on the motion to strike from the jury docket. The court had no written motion, and no facts established before it by way of affidavits, depositions or other documentary proof. See Practice Book §§ 378 through 384. Furthermore, the proper way to challenge subject matter jurisdiction is by a motion to dismiss, rather than a motion for summary judgment. See Practice Book § 143.
We reject the defendants’ argument that the court’s judgment should be upheld nonetheless because the court lacked subject matter jurisdiction. With respect to the defendants’ claim based on General Statutes
There is error, the judgment is set aside and the case is remanded for further proceedings according to law.
“[General Statutes] Sec. 47-33a. action on agreement to sell real estate, (a) No interest in real property existing under an executory agreement for the sale of real property or for the sale of an interest in real property or under an option to purchase real property shall survive longer than one year after the date provided in the agreement for the performance of it or, if the date is not so provided, longer than eighteen months after the date on which the agreement was executed, unless the interest is extended as provided herein or unless action is commenced within the period to enforce the agreement and notice of lis pendens is filed as directed by section 52-325.
“(b) The interest may be extended only by reexecution of the written agreement or by execution of a new written agreement, provided the agreement, whether reexecuted or newly executed, shall be recorded as directed by sections 47-10 and 47-17. The périod provided by this section shall not
“(c) Nothing in this section shall be construed to limit or deny any legal or equitable rights a party may have under the agreement except the right to have the agreement specifically enforced.”