63 Conn. App. 451 | Conn. App. Ct. | 2001
Opinion
Pursuant to General Statutes § 51-164s, the Superior Court is authorized to hear all cases except those over which the probate courts have original jurisdiction.
PROCEDURAL HISTORY
This case had its origin in a decree of the Probate Court for the district of Farmington with respect to the estate of Helen L. Lundborg. That decree overruled the objection of the plaintiff, Walfrid Lundborg, to certain distributions proposed in the final accounting for the estate. The plaintiff participated in the probate proceedings as an heir at law, a designated beneficiary and the residual beneficiary of the will of Helen L. Lundborg.
The plaintiff sought and was granted the right to pursue a probate appeal from the probate decree. In that appeal, he invoked the jurisdiction of the Superior Court sitting as a Probate Court. “An appeal from probate is not so much an ‘appeal’ as a trial de novo with the Superior Court sitting as a Probate Court and restricted by a Probate Court’s jurisdictional limitations. . . . Although the Superior Court may not consider events transpiring after the Probate Court hearing ... it may receive evidence that could have been offered in the Probate Court, whether or not it actually was offered.” (Citations omitted.) Gardner v. Balboni, 218 Conn. 220, 225, 588 A.2d 634 (1991).
In the probate appeal, the plaintiff alleged that the defendant George V. Lawler, the executor under the will, and the defendant Jeffrey L. Crown, attorney for the executor, were fiduciaries who had made fraudulent misrepresentations to the Probate Court and to the Connecticut department of revenue services in connection with the Probate Court’s administration of the
Thereafter, the plaintiff again invoked the jurisdiction of the Superior Court, sitting as a court of general jurisdiction, by filing the complaint that is presently before us. Alleging that the probate decree was invalid because its findings derived from misrepresentations made by the defendants to that court, the plaintiff sought to recover both compensatory and punitive damages. Crown filed a motion to dismiss the complaint for lack of subject matter jurisdiction. According to Crown, the court lacked such jurisdiction because the complaint’s allegations of misconduct had been finally adjudicated in the prior probate proceedings. Agreeing with Crown, the court granted this motion and rendered judgment in his favor.
In the plaintiffs appeal from this judgment, he has raised two issues. First, he maintains that he is entitled to proceed in a court of general jurisdiction because the present action is not essentially identical to the prior probate proceedings. Second, he maintains that the court was obligated to permit a collateral attack on a probate decree that raised an issue of fraud on the Probate Court.
I
The plaintiff maintains that the court’s decision to grant Crown’s motion to dismiss was improper because the court improperly concluded that the claims made in the probate appeal proceedings were essentially identical to those made in the judicial appeal proceedings.
The court compared the substantive issues raised in the judicial complaint and in the probate appeal.
Examination of the relevant documents confirms the court’s conclusion because, in each forum, the plaintiff has alleged that the defendants made fraudulent misrepresentations to the Probate Court and the Connecticut department of revenue services in connection with the Probate Court’s administration of the Helen L. Lund-borg estate. The plaintiff has not identified any significant substantive discrepancies between the issues in the two proceedings.
The court also concluded that the addition of Crown as a party defendant did not destroy the essential identity between the two proceedings. We agree.
Crown was not a stranger to the probate proceedings. The record discloses, and the plaintiff does not contest, that Crown played an active role in the probate litigation. Indeed, the Probate Court expressly ruled that Crown had acted in good faith. In the plaintiffs probate appeal, he challenged the conduct of Lawler, as executor, for allegedly having made untruthful statements “through his attorney,” Crown.
Our Supreme Court has analyzed claims of lack of identity with respect to issue preclusion, or collateral estoppel, by reference to the concept of privity. “In determining whether privity exists, we employ an analysis that focuses on the functional relationships of the parties. Privity is not established by the mere fact that persons may be interested in the same question or in proving or disproving the same set of facts. Rather, it is, in essence, a shorthand statement for the principle that collateral estoppel should be applied only when there exists such an identification in interest of one person with another as to represent the same legal rights so as to justify preclusion.” Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 814, 695 A.2d 1010 (1997).
The plaintiff further argues that the probate proceedings are not essentially identical to the judicial proceedings because he now claims a right to recover damages. It is true, as a general matter, that a “court of probate is unable to award damages.” Palmer v. Hartford National Bank & Trust Co., 160 Conn. 415, 430, 279 A.2d 726 (1971); Phillips v. Moeller, 147 Conn. 482, 488-89, 163 A.2d 95 (1960). We decline to address this argument, however, because it was riot properly preserved at trial. See Santopietro v. New Haven, 239 Conn. 207, 219-20, 682 A.2d 106 (1996). It was not raised in the plaintiffs memorandum in opposition to the motion to dismiss. It was not raised, as far as we can tell, anywhere else in the court record. It was not discussed in the court’s memorandum of decision, and the plaintiff filed no motion for articulation. See Practice Book § 66-5.
II
The plaintiffs claim of fraud, as argued in this court, relies heavily on General Statutes § 45a-24,
As we understand it, the plaintiff argues that any allegation of fraud in Probate Court proceedings confers jurisdiction on the Superior Court sitting as a court of general jurisdiction. He claims that such jurisdictional authority exists no matter how thoroughly the
We need not resolve, however, the plaintiffs claim on the merits because the plaintiff has not explained why this claim is appropriate for appellate review. He does not address the well established rule that, in the absence of exceptional circumstances, our appellate courts do not consider issues of law that were not presented first to the trial court.
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 51-164s provides: “Superior Court sole trial court. Jurisdiction transferred from Court of Common Pleas and Juvenile Court. 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. All jurisdiction heretofore conferred upon and exercised by the Court of Common Pleas and the Juvenile Court prior to July 1, 1978 shall be transferred to the Superior Court on July 1, 1978.”
The plaintiff failed to provide a return date in his motion for appeal from the Probate Court. Pursuant to General Statutes § 45a-189, he had ninety days to correct this defect.
The record does not reveal the current status of the plaintiffs action against Lawler.
We shall, hereafter, refer to the probate appeal, which was dismissed for failure to provide a return date, simply as the probate appeal and to the appeal from the court’s granting of Crown’s motion to dismiss as the judicial appeal.
Although the plaintiff complains that the Probate Court’s decree refers only indirectly, by dint of the final accounting, to his claims of fiduciary misconduct, each of the issues now contested by the plaintiff was fully described in the probate appeal, which the plaintiff permitted to lapse.
In Ms reply brief, the plaintiff contends that there is a lack of identity between the probate proceeding and the judicial proceeding because he did not have a full opportunity to present evidence in the Probate Court. He does not explain, however, why a claim of evidentiary error could not have been presented in the probate appeal.
General Statutes § 45a-24 provides: “Every order, judgment or decree of a court of probate made by a judge who is disqualified shall be valid unless an appeal is taken as hereinafter specified. All orders, judgments and decrees of courts of probate, rendered after notice and from which no appeal is taken, shall be conclusive and shall be entitled to full faith, credit and validity and shall not be subject to collateral attack, except for fraud.”
The plaintiff has not sought plain error review.
In Conti, judicial proceedings were initiated by plaintiffs who had not participated in the underlying probate proceedings. Those proceedings had no jurisdictional flaw. The claim of fraud was raised by way of a counterclaim, which this court permitted to go forward, to challenge probate proceedings that had not been definitively resolved. Principally, we relied on a lack of identity between the litigants in the probate proceedings and the litigants in the judicial proceedings. Conti v. Murphy, supra, 23 Conn. App. 179. That is not this case.