Rider v. Rider ( 2022 )

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PATRICK RIDER v. BRIAN RIDER, CONSERVATOR
(ESTATE OF LEIGH RIDER), ET AL.
(AC 44067)
Alvord, Suarez and Lavine, Js.
Syllabus
The plaintiff appealed to the Superior Court from the decree of the Probate
Court approving the final account filed by the defendant. The Probate
Court had mailed notice of its decree on December 22, 2017. Prior to
filing his appeal with the Superior Court on March 2, 2018, the plaintiff
filed a motion for revocation with the Probate Court on December 26,
2017, which the Probate Court denied on February 8, 2018. Thereafter,
the Superior Court rendered judgment dismissing the appeal for lack
of subject matter jurisdiction on the ground that it was untimely pursuant
to the applicable statute ((Rev. to 2017) § 45a-186 (a)) that requires an
appeal from a Probate Court decree to be filed in the Superior Court
within forty-five days of when the decree was mailed to the parties. On
appeal to this court, the plaintiff claimed that his motion for revocation
tolled the appeal period. Held that the Superior Court properly dismissed
the probate appeal for lack of subject matter jurisdiction on the ground
that it was untimely: the plaintiff did not file his appeal with the Superior
Court within forty-five days of when the Probate Court mailed its decree,
and his motion for revocation, filed pursuant to statute (§ 45a-128), did
not toll the appeal period for the Probate Court’s underlying decision
approving the final account, as the legislature clearly addressed tolling
the appeal period in its statutory scheme governing appeals in probate
cases and did not include the filing of a motion pursuant to § 45a-128
as an action that tolls the appeal period.
Argued December 2, 2021—officially released January 25, 2022
Procedural History
Appeal from the decree of the Probate Court for the
district of North Central Connecticut approving the final
account filed by the defendant, brought to the Superior
Court in the judicial district of Hartford and tried to
the court, Cobb, J.; judgment dismissing the appeal,
from which the plaintiff appealed to this court.
Affirmed.
Matthew S. Carlone, for the appellant (plaintiff).
Charles D. Houlihan, Jr., for the appellee (defen-
dants).
Opinion
ALVORD, J. The plaintiff, Patrick Rider, appeals from
the judgment of the Superior Court dismissing his pro-
bate appeal for lack of subject matter jurisdiction. On
appeal, he claims that the court incorrectly concluded
that it lacked jurisdiction over his appeal on the basis
that it was untimely.1 We affirm the judgment.
The following procedural history is relevant to our
resolution of this appeal. In July, 2017, Leigh Rider
(Rider)2 filed a petition with the Probate Court
requesting a voluntary conservatorship with the defen-
dant Brian Rider appointed as conservator of his person
and estate. The Probate Court granted the petition. One
month later, in August, 2017, Rider requested that the
court ‘‘revoke his voluntary conservatorship,’’ and the
Probate Court granted this request. On October 31,
2017, the defendant filed a final account with the Pro-
bate Court. The Probate Court then noticed and
assigned a hearing on allowance of the final account.
Before the hearing was held, on December 2, 2017,
Rider died.
The hearing on allowance of the final account was
held on December 13, 2017.3 During the hearing, the
plaintiff objected to the account, challenging the attor-
ney’s fees expended because ‘‘the amount of time and
itemization . . . was not provided to the court’’ or to
the plaintiff and arguing that assets that should have
been included in the account were not included. At the
conclusion of the hearing, the court asked: ‘‘All right.
Is that it, [plaintiff]? You done?’’ The plaintiff responded:
‘‘Yes, Your Honor. I am done.’’ The court closed the
hearing by saying: ‘‘Okay. I’m going to have to spend
some time on this myself so I’m going to have to con-
tinue this hearing.’’
On December 22, 2017, the court issued a ‘‘Decree:
Final Account,’’ allowing and approving the final
account without scheduling another hearing. On
December 26, 2017, the plaintiff, acting in a self-repre-
sented capacity,4 filed a ‘‘Motion for Revocation of Pro-
bate Decree Allowing the Approval of the Accounting
of the Conservator, [General Statutes § 45a-128 (a) and
(b)]’’ (motion for revocation).5 The plaintiff was con-
cerned that records of attorney’s fees were not pro-
vided, an explanation of claimed irregularities in the
account had yet to be discussed, and there had not
been a continued hearing on the account.6 The plaintiff
then requested ‘‘a hearing as per [§ 45a-128] and an
order that [the attorney for the conservatorship] send
out his time slips for all pre-conservatorship fees and
fees during the conservatorship . . . .’’
On February 8, 2018, the Probate Court denied the
motion for revocation pursuant to § 45a-128 (b),7 stating
that ‘‘the request . . . does not meet the requirements
outlined in . . . [§] 45a-128 as all parties in interest
have not filed a consent to reconsider, all parties in
interest did receive notice of hearing . . . no scrivener
or clerical error has been identified, and no discovery
or identification of parties unknown to the court was
made.’’
Subsequently, the plaintiff filed a complaint, appeal-
ing from the Probate Court’s decree accepting the final
account, with the Superior Court. The complaint was
not filed until March 2, 2018. In both the original com-
plaint and the amended complaint, filed March 14, 2018,
the plaintiff asserted that he ‘‘filed a written motion for
reconsideration with the Probate Court reasserting the
plaintiff’s objections described herein. However, as of
the date hereof, no action has been taken on said
motion.’’ The plaintiff requested a de novo review of
the final account and listed several objections to the
account,8 arguing that the Probate Court never consid-
ered those objections despite stating that it would con-
tinue the hearing on the final account in order to do so.
On March 16, 2018, the defendant filed a motion to
dismiss the plaintiff’s appeal. The defendant argued
that, inter alia, General Statutes (Rev. to 2017) § 45a-186
(a) ‘‘requires the filing of an appeal in a conservatorship
matter by filing a complaint in the Superior Court no
later than forty-five (45) days after the mailing of the
order. The underlying order was mailed on December
22, 2017. The complaint must therefore be filed in Supe-
rior Court by no later than February 5, 2018. This case
was filed in Superior Court on March 2, 2018, seventy
(70) days after the order, and was therefore untimely.’’
On April 30, 2018, after a hearing, the Superior Court,
Cobb, J., denied the motion to dismiss, concluding that
‘‘the plaintiff has timely appealed from an order denying
a motion entitled ‘motion for revocation,’ which the
plaintiff indicates is [a] motion for reconsideration. As
this act of the Probate Court constitutes ‘any order,
denial or decree of’ a court of probate, it is an appealable
order, and from this order the parties agree the appeal
is timely. Accordingly, the motion to dismiss is denied.’’9
(Quoting in part General Statutes (Rev. to 2017) § 45a-
186 (a)).
On April 30, 2019, the plaintiff filed his brief in support
of his appeal to the Superior Court wherein he argued
that (1) his rights were prejudiced when the court issued
the decree approving the proposed final account with-
out completing the hearing and by not providing notice
that the hearing would not be completed and (2) the
probate hearing on the final account was ‘‘statutorily
deficient.’’ Aside from the procedural statement that
there was a motion for revocation which was denied,
the plaintiff did not raise issues related to the Probate
Court’s denial of that motion. In response, the defendant
made several arguments in support of affirmance of the
decree approving the final account and reasserted his
contention that the Superior Court lacked subject mat-
ter jurisdiction because the appeal was untimely as it
was not filed within the appeal period set forth in Gen-
eral Statutes (Rev. to 2017) § 45a-186 (a).
On January 29, 2020, the Superior Court issued a
memorandum of decision. The court first determined
that it lacked subject matter jurisdiction over the plain-
tiff’s appeal insofar as it related to the Probate Court’s
decree accepting the final account. Specifically, the
Superior Court stated: ‘‘In denying the defendant’s
motion to dismiss, this court found that the plaintiff’s
appeal from the order denying the motion for revocation
was timely.10 Implicit in that ruling, and to clarify, the
plaintiff’s appeal from the Probate Court’s December
22, 2017 order approving the final account was not
timely commenced because it was not filed until March
2, [2018], well beyond the thirty or forty-five day limita-
tions in General Statutes § 45a-186. Thus, the only Pro-
bate Court order that the court has jurisdiction to con-
sider in this appeal is the Probate Court’s order denying
the motion for revocation: it is jurisdictionally barred
from considering claims related to the Probate Court’s
decision approving the defendant’s final account.’’
(Footnote added; footnote omitted.) The court contin-
ued, ‘‘[t]he plaintiff contends that the Probate Court
acted in violation of the General Statutes and that it
abused its discretion in denying [his] motion [for] revo-
cation. The plaintiff’s argument, however, focuses
almost exclusively on the procedural deficiencies of
the December 13, 2017 hearing on the final account and
the Probate Court’s order approving the final account.
As stated previously, the court lacks jurisdiction to con-
sider these matters because the plaintiff’s appeal from
the December 22, 2017 decree was untimely.’’ The plain-
tiff now appeals to this court.
On appeal, the plaintiff argues that the Superior Court
incorrectly concluded that it lacked subject matter juris-
diction over the plaintiff’s appeal from the Probate
Court’s decree approving the final account because his
motion for revocation tolled the appeal period applica-
ble to that Probate Court decision.11 The defendant
asserts that the Superior Court properly dismissed the
appeal because it was not filed within forty-five days
of the Probate Court’s December 22, 2017 decree
accepting the final account. We agree with the defen-
dant that the Superior Court correctly determined that
it lacked subject matter jurisdiction over the plaintiff’s
appeal from the Probate Court’s decree approving the
final account.
We first set forth our standard of review and relevant
principles of law. ‘‘Our Supreme Court has long held
that because [a] determination regarding a trial court’s
subject matter jurisdiction is a question of law, our
review is plenary. . . . Moreover, [i]t is a fundamental
rule that a court may raise and review the issue of
subject matter jurisdiction at any time. . . . Subject
matter jurisdiction involves the authority of the court
to adjudicate the type of controversy presented by the
action before it. . . . [A] court lacks discretion to con-
sider the merits of a case over which it is without
jurisdiction . . . . 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, including on appeal. . . .
‘‘[W]e are . . . mindful of the familiar principle that
a court [that] exercises a limited and statutory jurisdic-
tion is without jurisdiction to act unless it does so under
the precise circumstances and in the manner particu-
larly 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 limita-
tions. . . . 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] . . . . Failure to comply with the relevant time limit
set forth in [General Statutes (Rev. to 2017)] § 45a-
186 (a) deprives the Superior Court of subject matter
jurisdiction and renders such an untimely appeal sub-
ject to dismissal.’’ (Citations omitted; internal quotation
marks omitted.) In re Probate Appeal of Knott, 190
Conn. App. 56, 61–62, 209 A.3d 690 (2019).
We next set forth the statute governing appeals of
Probate Court orders. General Statutes (Rev. to 2017)
§ 45a-186 (a) provides in relevant part that ‘‘any person
aggrieved by any order, denial or decree of a Probate
Court in any matter, unless otherwise specially pro-
vided by law, may, not later than forty-five days after
the mailing of an order, denial or decree for a matter
heard under any provision of,’’ inter alia, General Stat-
utes § 45a-660,12 ‘‘appeal therefrom to the Superior
Court. Such an appeal shall be commenced by filing a
complaint in the superior court . . . .’’
The plaintiff argues that his motion for revocation
tolled the appeal period relating to the Probate Court’s
decree accepting the final account, which the parties
agree began to run on December 22, 2017. Specifically,
the plaintiff argues that ‘‘when a party files a motion
for reconsideration pursuant to . . . § 45a-128, the
time for filing an appeal does not start running until
the Probate Court either rules on the motion for recon-
sideration or provides notice that it does not intend to
act on the motion for reconsideration.’’13 Therefore, he
asserts, the appeal period did not begin to run until
February 8, 2018, when the Probate Court denied his
motion for revocation, providing him with forty-five
days from that date to file his appeal of the decree
accepting the final account with the Superior Court,
and, therefore, his March 2, 2018 filing of the appeal
was timely.
Because ‘‘[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 an appeal must
be met’’; In re Probate Appeal of Knott, supra, 190 Conn.
App. 61; we turn to the language of the statute governing
probate appeals. As noted previously, General Statutes
(Rev. to 2017) § 45a-186 (a) creates a forty-five day
period within which to file an appeal. The statutory
scheme that governs appeals in probate cases provides
the sole circumstance that tolls the appeal period. Gen-
eral Statutes § 45a-186c provides that the appeal period
is tolled when an application for a waiver of costs is
filed. Our legislature clearly addressed tolling the
appeal period and did not include the filing of a motion
pursuant to § 45a-128 as an action that tolls the appeal
period. See General Statutes § 45a-186c.
In addition, § 45a-128, which governs motions for
reconsideration, modification and revocation in pro-
bate matters, addresses the appeal procedure for such
motions14 and does not provide that such motions toll
the appeal period with respect to the underlying deci-
sion. See General Statutes § 45a-128 (c); see also Bur-
nell v. Chorches, 173 Conn. App. 788, 792 n.2, 164 A.3d
806 (2017) (noting that plaintiffs had provided no legal
support for claim that motion for reconsideration tolled
thirty day time period and noting that court similarly
was not aware of any such authority). We find persua-
sive that the legislature expressly addressed appellate
procedure in § 45a-128 and did not provide that such a
motion would toll the appeal period for the underlying
court action. See General Statutes § 45a-128 (c); cf.
Ierardi v. Commission on Human Rights & Opportu-
nities, 15 Conn. App. 569, 575–76, 546 A.2d 870 (appeal
period in administrative case tolled because governing
statute provided that ‘‘[a] request for reconsideration
postpones the running of the appeal period . . . until
‘the decision thereon’ ’’), cert. denied, 209 Conn. 813,
550 A.2d 1082 (1988).
For this court to agree with the plaintiff’s argument
would require us to graft on to the relevant statutes
discussed herein an exception that does not exist. ‘‘We
are not in the business of writing statutes; that is the
province of the legislature. Our role is to interpret stat-
utes as they are written. . . . [We] cannot, by [judicial]
construction, read into statutes provisions [that] are
not clearly stated.’’ (Internal quotation marks omitted.)
Thomas v. Dept. of Developmental Services, 297 Conn.
391, 412, 999 A.2d 682 (2010). Reading the relevant
statutory scheme with the well established principles
regarding the statutory right of appeal in probate cases,
we conclude that a motion pursuant to § 45a-128 does
not toll the appeal period for the underlying decision.
Thus, the plaintiff’s appeal from the decree approving
the final account was untimely, and the Superior Court
correctly determined that it lacked subject matter juris-
diction over the appeal.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff also claims on appeal that (1) his rights were prejudiced
by the Probate Court’s approval of the proposed final account without
completing the hearing and (2) the hearing was statutorily deficient. Because
we conclude that the Superior Court correctly determined that it lacked
subject matter jurisdiction over the plaintiff’s appeal, we need not consider
these claims.
2
Patrick Rider, the plaintiff, and Brian Rider, the defendant, are both sons
of Leigh Rider. Brian Rider was named as a defendant in the complaint in
the Superior Court in both his individual capacity and as conservator of the
estate of Leigh Rider. Leigh Rider will be referred to as Rider throughout
this opinion.
3
Prior to this hearing, the plaintiff’s attorney requested a continuance
‘‘for the reason that he could not attend the hearing in person and had just
been retained by the plaintiff, and needed more time to consider the petition
for final account.’’ The motion was denied and the plaintiff’s counsel attended
the hearing via telephone.
4
Although the plaintiff was represented by counsel at this point in the
proceedings, at oral argument before this court, the plaintiff’s counsel repre-
sented that the plaintiff had filed this motion himself on the mistaken belief
that he was no longer represented by counsel.
5
The plaintiff, as well as the Probate Court and the Superior Court, at
times refer to this motion as a motion for reconsideration. For the sake of
consistency and clarity, we refer to the motion as a motion for revocation
throughout this opinion.
We also note that whether the plaintiff’s motion is referred to as a motion
for reconsideration or a motion for revocation is inconsequential to our
analysis because the governing statute applies to both motions. See General
Statutes § 45a-128 (‘‘[t]he court may reconsider and modify or revoke any
such order or decree for any of the following reasons . . . .’’ (emphasis
added)).
6
On the basis of these contentions, the plaintiff asserted that the decree
approving the account was ‘‘an ex parte [§] 45[a]-128 (a) decision . . . .’’
Section 45a-128 (a), which governs ex parte orders and decrees, provides
in relevant part that ‘‘an ex parte order or decree is an order or decree
entered in a proceeding of which no notice is required to be given to any
party and no notice is given’’ and that ‘‘[r]econsideration may be made on
the court’s own motion or, for cause shown satisfactory to the court . . . .’’
7
General Statutes § 45a-128 (b) provides in relevant part that ‘‘[t]he court
may reconsider and modify or revoke any such order or decree for any of
the following reasons: (1) For any reason, if all parties in interest consent
to reconsideration, modification or revocation, or (2) for failure to provide
legal notice to a party entitled to notice under law, or (3) to correct a
scrivener’s or clerical error, or (4) upon discovery or identification of parties
in interest unknown to the court at the time of the order or decree.’’
8
The plaintiff included assertions that ‘‘the accounting was materially
incomplete . . . materially inaccurate . . . sought approval of attorney’s
fees that were not sufficiently substantiated by the accounting itself . . .
sought approval of attorney’s fees that had no nexus to the conservatorship
and therefore not reasonable; and/or . . . the conservator negligently and/
or intentionally failed to perform the duties required by law.’’
9
The plaintiff did not appeal from the Probate Court’s denial of his motion
for revocation. See footnote 10 of this opinion.
10
Each party, as well as the Superior Court, suggested at various points
that the plaintiff appealed from the court’s denial of his motion for revoca-
tion. Our careful review of the record reveals that the plaintiff never appealed
from the Probate Court’s denial of his motion for revocation and does not
raise claims on appeal to this court with respect to the denial of his motion.
In fact, the plaintiff’s complaint to commence his appeal in the Superior
Court was dated prior to the Probate Court’s ruling on the motion for
revocation, and he did not make arguments before the Superior Court related
to the Probate Court’s ruling on that motion. Therefore, despite the Superior
Court’s comments to the contrary in both the decision on the motion to
dismiss and in its memorandum of decision, the plaintiff only appealed from
the court’s decision to accept the final account and not from the court’s
denial of his motion for revocation. See Silverstein v. Laschever, 113 Conn.
App. 404, 414, 970 A.2d 123 (2009) (‘‘[a]n appeal [brings] before the Superior
Court for review only the order appealed from’’ (internal quotation marks
omitted)); see also In re Probate Appeal of McIntyre, 207 Conn. App. 433,
440, 263 A.3d 925 (2021) (‘‘The Superior Court may not consider or adjudicate
issues beyond the scope of those proper for determination by the order or
decree attacked. . . . The Superior Court, therefore, cannot enlarge the
scope of the appeal.’’ (Internal quotation marks omitted.)).
11
The plaintiff also argues that, ‘‘[i]irrespective of the tolling effect of the
motion for reconsideration, the decision’s flawed analysis is evidenced by
which date it considers the appeal period began in this matter. . . . The
Court’s holding misapplies the ‘final judgment doctrine’ by measuring the
commencement of the appeal period as December 13, 2017 [the date of the
hearing on the account]; in contrast the court correctly measured the appeal
period from December 22, 2017 [the date of the court’s ruling on the account]
when the court denied the defendant’s motion to dismiss. . . . The trial
court in this case ruled that the appeal period commenced on December
13, 2017 even though there was no, ‘order, denial or decree of a Probate
Court’ to appeal from until December 22, 2017. This simple fact negates the
whole of the trial court’s flawed reasoning . . . .’’
With respect to this argument, it appears that the plaintiff has misread
the Superior Court’s memorandum of decision. Although the court refer-
enced the date of the hearing with respect to its review of the Probate
Court’s denial of the motion for revocation, the court did not use that date
in determining that it lacked subject matter jurisdiction. The Superior Court
clearly measured the appeal period as beginning on the date of the Probate
Court’s approval, concluding that ‘‘the plaintiff’s appeal from the Probate
Court’s December 22, 2017 order approving the final account was not timely
commenced because it was not filed until March 2, [2018], well beyond the
thirty or forty-five day limitations in General Statutes § 45a-186.’’ Accord-
ingly, we reject the plaintiff’s argument.
12
General Statutes § 45a-660 provides in relevant part: ‘‘(a) (1) A conserved
person may, at any time, petition the Probate Court having jurisdiction for
the termination of a conservatorship. . . .
(b) (1) In any case under subsection (a) of this section, the conservator
shall file in the court the conservator’s final account, and the court shall
audit the account and allow the account if it is found to be correct. . . .’’
13
In making this argument, the plaintiff relies solely on Superior Court
decisions that are not binding on this court. See Towbin v. Board of Examin-
ers of Psychologists, 71 Conn. App. 153, 177, 801 A.2d 851, cert. denied, 262
Conn. 908, 810 A.2d 277 (2002).
14
General Statutes § 45a-128 (c) provides that ‘‘[u]pon any modification
or revocation there shall be the same right of and time for appeal as in the
case of any other order or decree.’’