Southport Congregational Church-United Church of Christ v. Hadley ( 2014 )

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SOUTHPORT CONGREGATIONAL CHURCH–UNITED
CHURCH OF CHRIST v. BETTY ANN HADLEY,
COEXECUTOR (ESTATE OF ALBERT L.
HADLEY), ET AL.
(AC 35289)
(AC 36395)
Lavine, Sheldon and Bishop, Js.
Argued February 20 and May 28—officially released August 19, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Radcliffe, J.)
John A. Farnsworth, for the appellant in both
appeals (plaintiff).
Daniel J. Krisch, with whom was Jeffrey F. Gostyla,
for the appellee in both appeals (defendant Cheekwood
Botanical Garden and Museum of Art).
Grant P. Haskell, for the appellees in both appeals
(named defendant et al.).
James Hogan Love filed a brief for the appellee in
AC 35289 (named defendant).
Opinion
SHELDON, J. In these appeals involving a disputed
application of the doctrine of equitable conversion, the
central question is whether certain real property auto-
matically passed to the specific devisee of the property
under a will upon the death of the decedent when, prior
to the decedent’s death, he had entered into a contract
to sell the property to a third party. The decedent, Albert
L. Hadley, in his last will and testament, specifically
devised a residential real property that he owned in
Southport to the plaintiff, Southport Congregational
Church–United Church of Christ (church). Prior to his
death, however, he entered into a contract to sell the
property to a third party, Evelyn P. Winn. The decedent
died before the closing on the property could take place
and before a mortgage contingency clause contained
in the sales contract either expired or was waived or
fulfilled. The church claims that the Superior Court
erred in applying the doctrine of equitable conversion
in this case and, on that basis, authorizing the defendant
coexecutors of the decedent’s estate, Betty Ann Hadley
and Lee Snow, to complete the sale of the property
to Winn following the decedent’s death, pursuant to
General Statutes § 45a-325.1 The church argues, as it
did below, that because it is the specific devisee of the
property under the decedent’s will and the decedent’s
estate is solvent, the property cannot be sold without
its written consent, pursuant to General Statutes § 45a-
428 (b).2 To resolve the church’s claim on appeal, we
must determine whether, at the time of the decedent’s
death, he retained an ownership interest in the subject
property or, under the doctrine of equitable conversion,
he retained only an equitable claim to the proceeds
from the expected sale of the property, while Winn held
title to the property itself. If, at the time of his death,
the decedent no longer had an ownership interest in
the property, it could not have passed automatically to
the church upon his death, and thus the Probate Court,
and the Superior Court thereafter, properly ruled that
the coexecutors of the estate had the authority to sell
the property, pursuant to § 45a-325, without the
church’s approval. The church has appealed from the
judgment of the Superior Court, asserting that because
the contract contained a contingency that had neither
expired nor been waived or fulfilled by the time of
the decedent’s death, the contract was not subject to
specific performance at that time, and, thus, not subject
to the doctrine of equitable conversion. We agree with
the church that the court improperly applied the doc-
trine of equitable conversion to this case, and, thus,
that the property passed to the church by operation of
law upon the decedent’s death. The Superior Court’s
judgments authorizing the sale of the property to Winn
without the consent of the church must therefore be
reversed.3
The following factual and procedural history is rele-
vant to the resolution of the claims raised in these
appeals. The decedent owned a residential property at
504 Pequot Avenue in Southport. In his last will and
testament dated September 22, 2010, he specifically
devised that property to the church. On March 21, 2012,
however, the decedent entered into a contract to sell
that property to Winn. That transaction did not close
prior to the decedent’s death on March 30, 2012.
The decedent’s will was admitted to probate in the
Surrogate’s Court for the County of New York, New
York, on or about May 10, 2012. On June 15, 2012, the
coexecutors of the decedent’s estate filed an application
with the Probate Court for the district of Fairfield for
ancillary jurisdiction based upon the location of the
subject property and for authorization to sell the prop-
erty, pursuant to § 45a-325, in accordance with the con-
tract executed by the decedent prior to his death.
Around that same time, Cheekwood Botanical Garden
and Museum of Art (Cheekwood) filed a claim that a
certain letter from the decedent dated March 6, 2012,
was a valid and enforceable codicil to the decedent’s
will, under which Cheekwood was to receive the pro-
ceeds from the sale of the property. On July 24, 2012,
the Probate Court granted the application for ancillary
administration, appointed Hadley and Snow as coexec-
utors of the decedent’s estate, and granted the applica-
tion for authorization to sell the property to Winn for
the contract price of $466,000, which funds were to be
held in an interest-bearing account until further order
of that court.
On August 10, 2012, the church filed an appeal from
the Probate Court’s July 24, 2012 decree with the Supe-
rior Court, wherein it alleged that because it was the
specific devisee of the subject property under the dece-
dent’s will, and the decedent’s estate was solvent, the
coexecutors could not sell the property without its con-
sent pursuant to § 45a-428 (b). The church had not
consented to the sale.
Five days later, on August 15, 2012, the Probate Court
amended its July 24, 2012 decree to require the coexecu-
tors, under § 45a-428, to obtain the consent of the
church before selling the property.4
On September 24, 2012, with the church’s probate
appeal from the July 24, 2012 decree still pending, the
coexecutors filed an answer, special defense and coun-
terclaim in response to the church’s complaint therein.
In their counterclaim, the coexecutors sought authori-
zation, as they had initially in the Probate Court, to sell
the subject property pursuant to § 45a-325.5 Thereafter,
on October 5, 2012, the coexecutors filed a separate
application with the Superior Court seeking the same
relief as they were seeking in their counterclaim, to
wit: authorization to sell the property to Winn pursuant
to § 45a-325. The church withdrew its appeal later
that day.
On December 4, 2012, Cheekwood, which had been
permitted to intervene in the probate appeal as a party
defendant on November 5, 2012, filed a memorandum
of law in support of the coexecutors’ application for
authorization to sell the property, in which it argued,
under the doctrine of equitable conversion, that
because the decedent had executed the contract for
sale of the property prior to his death, his interest in
the real property had terminated at that time and had
vested instead in the purchaser, Winn, leaving him with
only an interest in the expected proceeds from the
ultimate sale of the property. Thus, Cheekwood argued,
because the estate had no interest in the subject real
property at the time of the decedent’s death, § 45a-428
did not apply.
In response, the church filed an objection to the coex-
ecutors’ application, in which it argued that: the applica-
tion should be denied pursuant to General Statutes
§ 45a-246 because it constituted an impermissible collat-
eral attack on the Probate Court’s August 15, 2012
decree; the Superior Court did not have jurisdiction to
adjudicate the application because it was beyond the
scope of the probate appeal, which had since been
withdrawn; and the doctrine of equitable conversion
did not apply in the circumstances of this case because
the sales contract contained both an unsatisfied mort-
gage contingency clause and a waiver by the decedent
of his right to specific performance of the contract,
either of which assertedly precluded the termination
of his interest in the real property.
On December 7, 2012, following a hearing on the
application for authorization to sell the subject property
at which the parties submitted documentary evidence
and presented oral argument in support of their respec-
tive positions, the court rejected the church’s jurisdic-
tional challenges,7 then granted the coexecutors’
application for authorization to sell the property to
Winn. The court reasoned, under the doctrine of equita-
ble conversion, that because the decedent had executed
what it found to be a valid sales contract prior to his
death, he no longer had an interest in the property at
the time of his death, but only an equitable interest in
the funds that would ultimately be realized from the
sale of the property. The court thus concluded that
§ 45a-428 did not apply to this case, that the decedent’s
contract to sell the property to Winn was binding upon
the executors of his estate, that the estate was solvent,
that the property should be sold pursuant to § 45a-325,
and that the proceeds realized from that sale should be
held in an interest-bearing account until such time as
the Probate Court determined the appropriate disposi-
tion of those funds. Following the issuance of those
orders, when counsel for the plaintiff asked the court
if it was ‘‘making any ruling on the counterclaim itself,’’
the court responded: ‘‘No, because that’s not before
me. The only item before me is the application to sell
real property. The counterclaim is found to be an appeal
as part of the appeal of the order of the [Probate] Court
of the district of Fairfield.’’
The church thereafter filed a motion to reargue, in
which it renewed its § 45a-24 argument and elucidated
its challenge to the court’s jurisdiction. The church
argued that a counterclaim is not a proper filing in a
probate appeal and, additionally, because the counter-
claim filed by the coexecutors in this case sought a
declaratory judgment under General Statutes § 52-29,
which confers jurisdiction to hear such matters upon
the Superior Court, the counterclaim could not properly
be heard in a probate appeal in which the Superior
Court sits as a Probate Court. The court denied the
motion to reargue and the church appealed from that
judgment. That appeal bears docket number AC 35289.
On February 19, 2013, Cheekwood filed a motion for
summary judgment on the coexecutors’ counterclaim
on the ground that the relief sought therein was identi-
cal to that sought in the coexecutors’ earlier application
to sell the subject property, which had been granted by
the court. The church objected to Cheekwood’s motion,
asserting that Cheekwood did not have standing to
move for summary judgment on the coexecutors’ coun-
terclaim and that the counterclaim was moot because
the relief therein requested had already been granted
by the court when it granted the coexecutors’ applica-
tion for authorization to sell the property. On September
30, 2013, the court granted Cheekwood’s motion and
took judicial notice, based only upon the oral represen-
tations of Cheekwood’s counsel, that ‘‘Evelyn Winn is
ready, willing and able to proceed with the sale, has
waived the mortgage contingency clause, and is ready
to proceed with an all-cash purchase. . . . [A]nd that
has been the case from the beginning.’’ The church
thereafter filed a motion to reargue, in which it reas-
serted its challenges to the court’s jurisdiction and fur-
ther argued that the court ‘‘improperly took judicial
notice of matters relating to the potential future pur-
chase of the . . . property.’’ The court denied the
church’s motion to reargue and the church appealed
from that judgment. That appeal bears docket number
AC 36395.
Following oral argument in AC 35289, this court sua
sponte ordered expedited briefing and argument in AC
36395. The parties have fully briefed and argued the
claims presented in both appeals and we address those
claims herein. The substantive issue in the two appeals
is identical, namely, whether the decedent’s interest in
the subject property automatically passed to the church
upon his death, preventing the property from being sold
by the estate without the church’s consent pursuant to
§ 45a-428, or whether, because the decedent had
entered into a contract to sell that property to Winn
prior to his death, he retained only an equitable interest
in the proceeds of its ultimate sale instead of any inter-
est in the real property itself, thereby preventing the
property from automatically passing to the church pur-
suant to the decedent’s specific devise. Because both
appeals arise from orders entered in the same underly-
ing action, we will resolve them both in this opinion in
the interest of judicial economy.
I
AC 35289
A
As a threshold matter, we must address the church’s
challenge to the Superior Court’s subject matter juris-
diction over the coexecutors’ application for authoriza-
tion to sell the subject property under § 45a-325.8
Because that application was filed in the context of and
in furtherance of their counterclaim, we begin with the
issue of whether the Superior Court had jurisdiction
over the counterclaim. We conclude that the counter-
claim was essentially an appeal from the Probate
Court’s August 15, 2012 decree, and that the coexecu-
tors’ separate application for authorization to sell the
property under § 45a-325 was a pleading filed in further-
ance of their claim on appeal, over which the Superior
Court, sitting as a Probate Court in a probate appeal
clearly had jurisdiction. Because the application was
filed as part of a probate appeal, the Superior Court’s
adjudication of that application did not violate § 45a-24.
It is well settled that a challenge to the court’s subject
matter jurisdiction must be addressed, once it is raised,
before the case may proceed, and that because the issue
of jurisdiction presents a question of law, our review
of a jurisdictional challenge is plenary. See Guerra v.
State, 150 Conn. App. 68, 74, 89 A.3d 1028 (2014). ‘‘[I]n
determining whether a court has subject matter jurisdic-
tion, every presumption favoring jurisdiction should be
indulged. . . . Subject matter jurisdiction involves the
authority of the court to adjudicate the type of contro-
versy presented by the action before it.’’ (Citation omit-
ted; internal quotation marks omitted.) Keller v.
Beckenstein, 305 Conn. 523, 531, 46 A.3d 102 (2012).
‘‘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.’’ (Internal quotation marks
omitted.) Gardner v. Balboni, 218 Conn. 220, 225, 588
A.2d 634 (1991). ‘‘[A probate] appeal brings to the Supe-
rior Court only the order appealed from. . . . The
Superior Court may not consider or adjudicate issues
beyond the scope of those proper for determination by
the order or decree attacked. . . . In a probate appeal
. . . the Superior Court’s jurisdiction is statutory and
limited to the order appealed from. The issues pre-
sented for review are those defined in the reasons of
appeal. The Superior Court cannot consider or adjudi-
cate issues beyond the scope of those proper for deter-
mination by the order or decree attacked.’’ (Citation
omitted; internal quotation marks omitted.) Marshall
v. Marshall, 71 Conn. App. 565, 569–70, 803 A.2d 919,
cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002).
Here, the issue presented by the coexecutors’ coun-
terclaim, as well as by their separate application for
authorization to sell the subject property, is identical
to that presented in the initial probate appeal filed by
the church, namely, whether the coexecutors should
be authorized to sell the decedent’s property pursuant
to § 45a-325 under the contract for the sale of that
property that the decedent had executed prior to his
death, or whether § 45a-428 controls and requires the
consent of the church as a precondition to that sale.
Those pleadings thus set forth the parties’ countervail-
ing positions on that issue, differing only in the result
sought by each party. The determination of the nature
of the decedent’s interest in the real property at the
time of his death is dispositive of the question of which
statute controls as to the sale of the property. The
Probate Court initially answered that question in its July
24, 2012 decree by granting the coexecutors’ application
for authorization to sell the property under § 45a-325,
but then amended that decree on August 15, 2012, to
require the consent of the church for the sale under
§ 45a-428. In the context of the tortuous procedural
history of this matter, the coexecutors’ counterclaim
may reasonably be construed as a cross appeal from
the Probate Court’s August 15, 2012 decree.9 Not only
is the counterclaim within the scope of the issues pre-
sented in the original probate appeal, but it raises the
very same issue as that appeal. We thus conclude that,
at the time that the Superior Court adjudicated the
coexecutors’ application, it had jurisdiction over their
counterclaim. Accordingly, in this probate appeal, the
Superior Court, sitting as a Probate Court having juris-
diction of the settlement of the decedent’s estate to
authorize the fiduciary to convey title of any real prop-
erty held by the estate pursuant to § 45a-325, properly
exercised jurisdiction over the coexecutors’ appli-
cation.
As noted herein, § 45a-24 provides in relevant part
that unless a Probate Court decree is appealed, it consti-
tutes a final judgment that shall not be subject to collat-
eral attack. See footnote 6 of this opinion. The church
argues that the coexecutors’ application for authoriza-
tion to sell pursuant to § 45a-325 constituted an imper-
missible collateral attack on the Probate Court’s August
15, 2012 decree, which decided that very issue. Because
we construe the coexecutors’ counterclaim as an appeal
from the Probate Court’s August 15, 2012 decree, and
their application was filed in the course of and in fur-
therance of that appeal, the application was not a collat-
eral attack on that decree in violation of § 45a-24.
B
We now turn to the church’s substantive claim that
the Superior Court improperly granted the coexecutors’
application for authorization to sell the property pursu-
ant to § 45a-325. The church challenges the court’s
application of the doctrine of equitable conversion to
this case, claiming, inter alia, that because the sales
contract between the decedent and Winn contained a
mortgage contingency clause that had not yet expired
nor had it been waived or fulfilled by the time of the
decedent’s death, the decedent maintained an owner-
ship interest in the real property at the time of his death.
On that basis, the church contends that the property
became part of the decedent’s estate upon his death,
from which it passed automatically to the church, in
accordance with his will, preventing the sale of that
property by the coexecutors without the church’s con-
sent pursuant to § 45a-428. The coexecutors and Cheek-
wood disagree, arguing, as they did below, that § 45a-
428 does not apply because the decedent did not have
an interest in the real property at the time of his death
due to his prior execution of a contract to sell the
property to Winn. They contend that the execution of
the sales contract transformed his interest from an own-
ership interest in the real property to an interest in
the anticipated proceeds from the sale of the property,
which is personalty to which § 45a-428 does not apply.
We agree with the church.
‘‘Under the doctrine of equitable conversion . . .
the purchaser of land under an executory contract is
regarded as the owner, subject to the vendor’s lien for
the unpaid purchase price, and the vendor holds the
legal title in trust for the purchaser. . . . The vendor’s
interest thereafter in equity is in the unpaid purchase
price, and is treated as personalty . . . while the pur-
chaser’s interest is in the land and is treated as realty.’’
(Citations omitted; internal quotation marks omitted.)
Francis T. Zappone Co. v. Mark, 197 Conn. 264, 267, 497
A.2d 32 (1985). ‘‘An equitable title is a right possessed by
a person to have the legal title to property transferred
to him upon the performance of specified conditions.
. . . The right must be one enforceable in equity. . . .
In other words, before one can claim equitable title,
one must be in a position such that a court of equity
could, in exercising its jurisdiction over the parties,
convey legal title.’’ (Citations omitted; internal quota-
tion marks omitted.) Francini v. Farmington, 557 F.
Supp. 151, 155 (D. Conn. 1982). For the doctrine of
equitable conversion to apply, the real estate contract
must be specifically enforceable. 14 R. Powell, Real
Property (2007) § 81.03 [1], p. 81-85. ‘‘[A] contract
involving a precondition such as adequate financing
approval for the purchaser . . . is not a valid
agreement until the precondition has been accom-
plished.’’ Id., p. 81-86. ‘‘Whether [a party is] in fact equi-
table owner of the [property] in question is . . . a
conclusion of law’’; Francini v. Farmington, supra,
155; over which our review is plenary. Joyner v. Sim-
kins Industries, Inc., 111 Conn. App. 93, 97, 957 A.2d
882 (2008).
Here, the contract for the sale of the subject property
that was executed by the decedent and Winn on March
21, 2012, contained a mortgage contingency clause, in
paragraph 17 thereof, which provided that the parties’
agreement was contingent upon Winn obtaining a writ-
ten commitment for a loan in the amount of $230,000 on
or before April 16, 2012. As of the time of the decedent’s
death on March 30, 2012, that contingency had neither
expired nor been waived or fulfilled.10 Because the con-
tract of sale contained a contingency clause which, as
of the date of the decedent’s death, had not yet been
waived or fulfilled, then, on that date, the contract could
not have been specifically enforced. The decedent thus
maintained an ownership interest in the real property
at the time of his death, not merely an equitable interest
in the funds to be realized from the ultimate perfor-
mance of the contract. In accordance with the dece-
dent’s will, the property had been specifically devised
to the church. Therefore, because the estate was then
solvent, that property could not have been sold without
the consent of the church pursuant to § 45a-428. Accord-
ingly, the Superior Court erred in granting the coexecu-
tors’ application for authorization to sell that property.
II
AC 36395
As previously noted, this second appeal stems from
the Superior Court’s granting of Cheekwood’s motion
for summary judgment on the coexecutors’ counter-
claim. The church argues that the court lacked jurisdic-
tion over the motion because the relief requested in the
counterclaim was identical to that previously requested
in the coexecutors’ application, which the court had
already granted, thereby rendering the counterclaim
moot.11 We agree.
‘‘A case is considered moot if [the] . . . court cannot
grant the appellant any practical relief through its dispo-
sition of the merits . . . . Because mootness impli-
cates this court’s subject matter jurisdiction, it raises a
question of law over which we exercise plenary review.’’
(Internal quotation marks omitted.) Gagne v. Vaccaro,
311 Conn. 649, 659, 90 A.3d 196 (2014).
Although Cheekwood concedes that the counter-
claim sought exactly the same relief as the coexecutors’
application for authorization to sell the subject prop-
erty, it contends that practical relief was available to
it following the granting of the coexecutors’ application
because the ruling on the application was not a final
judgment that would have a preclusive effect on subse-
quent litigation of the same issue, whereas an order
granting summary judgment on the counterclaim would
be. We disagree. When the Superior Court granted the
coexecutors’ application for authorization to sell under
§ 45a-325, it concluded the parties’ rights on that ques-
tion, and thereby issued a final judgment. State v. Cur-
cio, 191 Conn. 27, 31, 463 A.2d 566 (1983). Because
there was no practical relief that could be afforded by
any action on the counterclaim that differed from or
went beyond the relief obtained by the coexecutors
when the court granted their application for authoriza-
tion to sell the property, the counterclaim was moot,
and thus the Superior Court lacked jurisdiction to grant
Cheekwood’s motion for summary judgment.
The judgments are reversed and the case is remanded
with direction to deny the coexecutors’ application for
authorization to sell the real property and to dismiss
the coexecutors’ counterclaim.
In this opinion the other judges concurred.
1
General Statutes § 45a-325 provides: ‘‘The court of probate having juris-
diction of the settlement of the estate of any deceased person may, concur-
rently with courts of equity, authorize the fiduciary of the estate to convey
the title of the deceased in any real property to any person entitled to it by
virtue of any contract of the deceased person, or to convey the title of the
deceased in any real property held or taken by him in any fiduciary capacity
to his successor or to the person or persons entitled thereto.’’
2
General Statutes § 45a-428 (b) provides: ‘‘Except as provided in this
section, real property of a decedent whose estate is solvent and either
specifically devised by will or forbidden by will to be sold or to be mortgaged
shall not be so ordered to be sold or mortgaged without the written consent
of the specific devisees or other parties interested as distributees of such
real property or of the guardians ad litem or guardians or conservators of
the estates of those not legally competent so to consent.’’
3
In so concluding, we are mindful of the coexecutors’ concern that the
value of the property, and thus the value of the estate, is diminishing with
the passage of time, based upon, among other factors, the cost to the estate
of maintaining the property and the damage that it has sustained by various
storms since the decedent’s death. We are confined, however, to the legal
issue presented on appeal and cannot address those concerns in this forum.
4
On January 18, 2013, the Probate Court vacated its amended decree
dated August 15, 2012, which required the church’s consent in order to sell
the property and reinstated its June 24, 2012 order authorizing the sale
without the church’s consent. The church has appealed from that decree
and that appeal is currently pending before the Superior Court. See Southport
Congregational Church–United Church of Christ v. Hadley, Superior Court,
judicial district of Fairfield, Docket No. CV-13-6033229-S.
5
At all times mentioned herein, the coexecutors have made it clear that
they take no position as to who should ultimately be awarded the proceeds
from the sale of the real property and those proceeds should be placed in
an account until such time as the Probate Court orders the distribution of
those funds.
6
General Statutes § 45a-24 provides in relevant part: ‘‘All orders, judg-
ments 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.’’
7
The court stated in its oral decision: ‘‘Section 45a-427 of the General
Statutes which deals with a situation which we have here this morning.
That statute says that . . . § 45a-325, excuse me, that the court of Probate
having jurisdiction of the settlement of the estate of a deceased person may
concurrently with courts of equity authorize the fiduciary of the estate to
convey the title of the deceased in any real property to any person entitled
to it by virtue of any contract of a deceased person, or to convey the title
of the deceased to any real property held or taken by him in any fiduciary
capacity to a successor, or to the person or persons entitled thereto.
‘‘Now, that statute provides for concurrent jurisdiction in the Probate
Court and the Superior Courts of the State of Connecticut which this is a
Court of equity, the Probate Court being a court of limited jurisdiction and
not a – a court of equity.
‘‘Now based on the – the facts of – of this case, the court finds that the
decree and the amended decree which are exhibits in this case; Exhibits
. . . G and H constitute – H and I rather, constitute a single decree, the
initial decree being issued in July and the amended decree relating back to
that decree and it’s labeled an – an amended decree and therefore attaches
to the initial decree which was issued, ordered and properly appealed to
this court. It’s found that they are one decree and that the August 15th
decision of the court relates back to the initial decisions. Further found
that a – an appropriate probate appeal was taken from the decree to this
court, and that a counterclaim was filed in that appeal prior to its being
withdrawn, and therefore the court does have jurisdiction to rule on the
counterclaim sitting as a Probate Court to determine whether there was, in
fact, an error of law.’’
8
The church takes issue with the Superior Court’s determination that the
filing of a counterclaim seeking a declaratory judgment in the context of a
probate appeal transformed the entire matter into a civil action over which
it possessed and exercised its general equity powers. Although we agree
that the court’s reasoning in this regard is perplexing, we need not dissect
that reasoning as our review of this issue is de novo.
The church also claims that the counterclaim seeks a declaratory judgment
pursuant to General Statutes § 52-29 over which the Superior Court lacks
jurisdiction in a probate appeal. The church aptly argues that § 52-29 confers
jurisdiction in actions for declaratory judgment upon the Superior Court,
and in a probate appeal, the Superior Court sits as a Probate Court, and
thus would be unable to adjudicate an action for declaratory judgment in
that capacity. The church’s interpretation of the counterclaim as an action
for declaratory judgment pursuant to § 52-29, however, is based upon a
singular use of the term ‘‘declaratory judgment’’ in the absence of any
reference to § 52-29. In fact, the language of the counterclaim makes clear
that its request for relief arises under § 45a-325. The church’s jurisdictional
challenge in this regard is therefore misplaced.
9
At oral argument before this court, the church disputed the notion that
the counterclaim could be construed as a cross appeal on the ground that
it was not filed within the thirty days prescribed by General Statutes § 45a-
186. It is well settled, however, that when an appeal is filed after the limita-
tions period has terminated, the appeal is rendered voidable, but not void.
Phinney v. Rosgen, 162 Conn. 36, 41, 291 A.2d 218 (1971); Heiser v. Morgan
Guaranty Trust Co., 150 Conn. 563, 566, 192 A.2d 44 (1963). ‘‘[T]he statute
limiting the time for taking appeals from probate is a statute of limitations
in the ordinary sense,’’ and is not intended ‘‘to affect the subject matter
jurisdiction of the Superior Court over an appeal . . . if not objected to in
the proper way and at a proper time.’’ (Internal quotation marks omitted.)
Phinney v. Rosgen, supra, 41; see also Heiser v. Morgan Trust Co., supra,
566–67. A motion to dismiss is the proper vehicle by which to attack an
untimely appeal from probate. Phinney v. Rosgen, supra, 41; Heiser v.
Morgan Guaranty Trust Co., supra, 567; see Conboy v. State, 292 Conn.
642, 654 n.18, 974 A.2d 669 (2009) (plea in abatement replaced by motion
to dismiss). The objection to the appeal, however, must be timely or it is
waived. See Phinney v. Rosgen, supra, 42; Heiser v. Morgan Trust Co.,
supra, 567. The timeliness of the counterclaim as an appeal from the Probate
Court’s amended decree of August 15, 2012, was never challenged before
the Superior Court by the church. Any such claim is therefore waived.
10
As noted herein, when the Superior Court granted Cheekwood’s motion
for summary judgment, the court took judicial notice of the fact that ‘‘Winn
is ready, willing and able to proceed with the sale, has waived the mortgage
contingency clause, and is ready to proceed with an all-cash purchase. . . .
[A]nd that has been the case from the beginning.’’ Because the contingency
clause had not been waived as of the date of the decedent’s death, it is
irrelevant that Winn may have waived it since that time.
11
The church challenges the Superior Court’s jurisdiction to hear the
counterclaim on several grounds. Because we conclude that the counter-
claim is moot, we need not address those additional jurisdictional challenges.