DAVID W. BURNELL, EXECUTOR (ESTATE OF DONALD B. BURNELL), ET AL. v. RONALD CHORCHES, TRUSTEE, ET AL.
(AC 38267)
Connecticut Appellate Court
Argued January 13—officially released June 13, 2017
Sheldon, Keller and Prescott, Js.
(Appeal from Superior Court, judicial district of Danbury, Truglia, J.)
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Stephen L. Savarese, for the appellants (plaintiffs).
Michael S. Schenker, for the appellee (named defendant).
Opinion
The following factual and procedural history, as set forth by the trial court, is relevant to the plaintiffs’ claims on appeal. ‘‘On December 11, 2014, the Court of Probate for the Northern District of Fairfield County (Probate Court) issued a notice of hearing for the estate of [the decedent], which provided for a hearing to be held on January 6, 2015. This notice was sent to all persons who had an interest in the estate, including the plaintiffs, David Burnell, individually and as executor of the decedent’s estate, and Stephen Savarese, attorney for Burnell as executor. The notice scheduled a hearing ‘[u]pon the petition for allowance of the final financial report of the fiduciary and an order of distribution of said estate as per petition on file more fully appears.’ The hearing took place as scheduled on January 6, 2015. At the hearing, the plaintiffs appeared and were heard. The plaintiffs had advance notice of the defendant’s objections to the final account, including his claims of breach of fiduciary duty and payment of excessive counsel fees. The plaintiffs also had advance notice of the Probate Court’s intention to address the issue of the defendant’s standing . . . . No objection was made by the plaintiffs as to the form of the notice of the hearing prior to, during, or after the hearing; nor did the plaintiffs file a motion for reconsideration, modification, or revocation of the decree with the Probate Court. The court also notes that the plaintiffs’ complaint does not claim any defect in the December 11, 2014 notice.
‘‘The Probate Court issued a memorandum of decision, Egan, J., on February 12, 2015, which was then mailed to all interested parties on February 13, 2015. The affidavit filed by Attorney Savarese in opposition to the defendant’s motion to dismiss indicates that the plaintiffs received an actual copy of the Probate Court’s decision on February 23, 2015. On March 13, 2015, the plaintiffs delivered the original summons and complaint to a state marshal for service of process. The marshal’s return indicates that service was made on the interested parties on March 16, 2015. The summons and complaint commencing this appeal were thereafter filed with the Superior Court on April 2, 2015.
‘‘The defendant’s argument is straightforward. The complaint in this probate appeal was not filed with the Superior Court within thirty days of the Probate Court mailing its decision to the parties as required under
‘‘The plaintiffs oppose the motion to dismiss on the following grounds. First, the plaintiffs argue that they did not receive sufficient notice of the January 6 hearing. Therefore, instead of being bound by the thirty day limitation of
The trial court rejected the plaintiffs’ arguments in opposition to the defendant’s motion, concluded that the plaintiffs had failed to file their appeal of the Probate Court’s decree within thirty days of the mailing of the decree, as required under
On appeal, the plaintiffs challenge the court’s dismissal of their action on the same grounds as they raised in the trial court in opposition to the defendant’s motion to dismiss. The plaintiffs first claim that, because they did not receive sufficient notice of the probate hearing, the thirty day time limit for filing an appeal under
‘‘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. . . . Whether an issue implicates subject matter jurisdiction is a question of law over which our review is plenary.’’ (Citations omitted; internal quotation marks omitted.) Heussner v. Hayes, 289 Conn. 795, 802, 961 A.2d 365 (2008).
The plaintiffs’ claims on appeal implicate the provisions of
‘‘[W]e are . . . mindful of the familiar principle that a court [that] 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. . . . The Superior Court, in turn, in passing on an appeal, acts as a court of probate with the same powers and subject to the same limitations. . . . It is also well established that [t]he right to appeal from a decree of the Probate Court is purely statutory and the rights fixed by statute for taking and prosecuting the appeal must be met. . . . Thus, only [w]hen the right to appeal . . . exists and the right has been duly exercised in the manner prescribed by law [does] the Superior Court [have] full jurisdiction over [it] . . . .’’ (Citations omitted; internal quotation marks omitted.) Connery v. Gieske, 323 Conn. 377, 390–91, 147 A.3d 94 (2016).
With the foregoing principles in mind, we turn to the language of the statutes under which the plaintiffs claim that their probate appeal was timely filed. Section
The plain and unambiguous language of
The plaintiffs nevertheless contend that they fall within the exception to that requirement pursuant to
The plaintiffs’ reliance on
Moreover, the plaintiffs had notice that the financial report was the subject of the January 6, 2015 hearing, and were aware that the defendant had filed objections to certain portions of the report. The plaintiffs, in fact, filed a written response to the defendant’s objections to the report. It is absurd to think that properly filed objections to a report, of which the plaintiffs had notice and to which they had filed a written response, would not be considered at a hearing to determine if the report should be accepted, particularly in light of the fact that the sums previously collected by the plaintiffs, which were the subject of the defendant’s objections, were listed in the report that the court was reviewing for approval. The plaintiffs’ claim that their action was governed by
The plaintiffs also claim that they complied with
The judgment is affirmed.
In this opinion the other judges concurred.