Jackson v. Drury ( 2019 )

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MARGARET JACKSON ET AL. v. LAUREN K.
DRURY ET AL.
(AC 40579)
Lavine, Bright and Bear, Js.
Syllabus
The plaintiffs, B, M, and N, beneficiaries of a settlor’s estate, appealed to
the trial court from an order by the Probate Court. After the settlor’s
estate was initially distributed, according to a certain trust instrument,
another beneficiary, J, died, and subtrusts were created for the benefit
of J’s children. Upon discovery of unclaimed funds belonging to the
settlor, the Probate Court appointed a temporary administrator to dis-
tribute the unclaimed funds to all beneficiaries, including J’s children.
The administrator petitioned the Probate Court to dissolve the subtrusts
created for the benefit of J’s children to allow him to distribute the
unclaimed funds directly to the beneficiaries. The Probate Court granted
the petition and, thereafter, B filed her first appeal to the trial court in
2015 against, inter alios, the defendant trust company, claiming that she
was aggrieved by the Probate Court’s decree dissolving the subtrusts.
The trial court granted the defendants’ motion to dismiss B’s appeal on
the ground that she was not aggrieved by the order and decree of the
Probate Court. Subsequently, M and N sent a letter to the Probate Court,
claiming that the trust company had breached its fiduciary duties and
had misappropriated funds by imposing its litigation costs related to
the 2015 appeal against their subtrust funds. In response, the Probate
Court held a hearing on the matter and issued a decree, finding that
the trust company had acted in good faith pursuant to its fiduciary duty
and that it would take no further action at that time. Thereafter, M and N
resolved their dispute with the trust company and signed indemnification
agreements to that effect. Subsequently, B informed the trust company’s
attorney that she intended to file an appeal against the trust company
for bad faith and mismanagement of the trust in connection with the
Probate Court’s decree regarding the litigation costs of the first appeal.
Thereafter, the trust company’s attorney sent M and N a letter notifying
them that if B pursued her appeal, M and N would be held responsible
for the legal fees incurred, due to the indemnification agreements they
had previously signed. Subsequently, B, M, and N filed the present appeal
against, inter alios, the trust company. The trial court granted the trust
company’s motion to dismiss the appeal for lack of subject matter
jurisdiction on the ground that the appeal was untimely pursuant to the
statute (§ 45a-186 [a]) that provides that an appeal from a Probate Court
order must be filed in the Superior Court within thirty days of when
the order was mailed to the parties. On appeal to this court, the plaintiffs
claimed that the trial court improperly dismissed their appeal. Held:
1. Because B was not aggrieved by the Probate Court decree, she lacked
standing to appeal, as she failed to allege a colorable claim of direct
personal injury, and the lack of aggrievement was a defect that deprived
the Superior Court of jurisdiction to hear the probate appeal; the plain-
tiffs appealed from the Probate Court’s decree and finding that the
attorney’s fees charged to the subtrusts of M and N for the trust com-
pany’s defense of the 2015 appeal were reasonable, but because B’s
trust was in no way affected, her alleged injury, if any, was indirect and
amorphous, as it derived from the decree of the Probate Court that
pertained to the subtrusts of M and N, and, therefore, she was not
aggrieved and lacked standing to appeal.
2. The trial court properly dismissed the probate appeal of M and N, as they
failed to comply with the plain language of § 45a-186 (a), which required
them to file the appeal within thirty days of when the Probate Court’s
order was mailed: M and N failed to file an appeal from the Probate
Court’s decree within thirty days of when it was mailed, and although
they sought to have the trial court reconsider its decision by alleging
that the trust company was guilty of fraud and deception, the thirty day
appeal period had expired before the time of the alleged deceptive acts,
and the plaintiffs’ claim that the doctrine of equitable estoppel tolled
the late filing of their appeal was unavailing, as the doctrine of equitable
tolling does not apply to subject matter jurisdiction, a court has no
authority to adjudicate the action before it when it lacks subject matter
jurisdiction, and even if the jurisdictional time limit for filing a probate
appeal could be equitably tolled, the claim of M and N failed because
the conduct of the trust company of which they complained occurred
after the jurisdictional deadline had passed; moreover, the alleged factual
basis of the plaintiffs’ claim on appeal was not material to the issue
decided by the Probate Court, which was the reasonableness of the
attorney’s fees incurred by the trust company and not whether the
trust company committed fraud and misappropriated the funds, and the
allegations were not within the jurisdictional purview of the Superior
Court sitting as a court of probate.
Argued March 4—officially released August 6, 2019
Procedural History
Appeal from the order and decree of the Probate
Court for the district of New London, brought to the
Superior Court in the judicial district of New London,
where the court, Bates, J., granted the motion to dismiss
the appeal filed by the defendant The Washington Trust
Company and rendered judgment thereon, and the
plaintiffs appealed to this court. Affirmed.
Nancy Burton, self-represented, with whom, on the
brief, were Margaret Jackson and Miarden Jackson,
self-represented, the appellants (plaintiffs).
Kenneth J. McDonnell, for the appellee (defendant
The Washington Trust Company).
Opinion
LAVINE, J. The self-represented plaintiffs Nancy Bur-
ton (Burton), and Margaret Jackson and Miarden Jack-
son (Jackson plaintiffs), appeal from the judgment of
dismissal rendered by the Superior Court in favor of
the defendants, The Washington Trust Company (trust
company) and Lauren K. Drury, vice president and
senior fiduciary officer of the trust company.1 The plain-
tiffs had appealed to the Superior Court from a decision
of the Probate Court for the district of New London.
On appeal, the plaintiffs have asserted numerous claims
as to why the court erred in dismissing their probate
appeal2 but principally argue that the court improperly
dismissed their appeal as untimely. In its brief to this
court, the trust company claims that Burton3 is not
aggrieved by the Probate Court’s decision and, there-
fore, her appeal should be dismissed. We agree that
Burton is not aggrieved by the Probate Court’s decision.
We also conclude that the Superior Court properly dis-
missed the plaintiffs’ probate appeal because it was not
timely filed. We, therefore, affirm the judgment of the
Superior Court.
We begin with a summary of the underlying facts and
procedural history, which we have gleaned from our
review of the record in the present case and the file in
Burton v. Burton, Superior Court, judicial district of
New London, Docket No. CV-XX-XXXXXXX-S (May 10,
2017) (2015 appeal).4 The issues in both cases are
related to the June K. Burton Revocable Trust (trust)
that was created by June K. Burton (settlor) on Febru-
ary 19, 1998. Burton and Margaret Jackson are two
of the settlor’s children, and Miarden Jackson is the
settlor’s grandson. When the settlor died on March 23,
2003, the trust company succeeded her as trustee. The
settlor’s will directed that her residuary estate was to
be placed in the trust and distributed, pursuant to a
formula, to the settlor’s children, i.e., Margaret Jackson,
Burton, and John Burton; to her grandchildren; and to
one other person. The trust company distributed the
trust property in accordance with the trust instrument
in 2008. John Burton died on December 26, 2013, and
subtrusts were created for the benefit of his children.5
Circa 2012, Burton learned that the treasurer of the
state of Connecticut was holding unclaimed property
(funds) of the settlor. The Probate Court appointed
Burton as temporary administrator of the settlor’s
estate for the purpose of filing a claim for the funds.
Due to a delay in the release of the funds, Burton’s
temporary appointment expired, and the Probate Court
appointed Attorney Patrick L. Poeschl as temporary
administrator of the settlor’s estate to claim the funds.
Upon receipt of the funds, Poeschl placed the funds in
an escrow account and applied to the Probate Court
to allow the amended final accounting and an order of
distribution of the settlor’s estate. He also petitioned
the Probate Court to terminate the subtrusts, allowing
him to distribute the funds directly to the beneficiaries
of the subtrusts. Burton opposed Poeschl’s proposed
distribution, claiming that it was at odds with the distri-
bution directed by the trust instrument. The Probate
Court approved Poeschl’s proposal and, on June 30,
2015, issued an order and decree granting Poeschl’s
application and petition.6
On September 2, 2015, Burton commenced the 2015
appeal from the June 30, 2015 order and decree and
filed a complaint against Orsolya Burton as guardian
of the minor Julia Burton and as executrix on the estate
of John Burton, and against the trust company.7 In the
2015 appeal, Burton alleged, among other things, that
Poeschl’s distribution awarded John Burton’s lapsed
one-sixth share of the trust to Orsolya Burton, as execu-
trix of his estate, thereby divesting John Burton’s ‘‘three
children’’ of their rightful shares pursuant to the trust
instrument. She also alleged that, as a named benefi-
ciary of the trust, she is entitled to a one-sixth share
of any and all trust property and that termination of
the trust in accordance with the terms proposed by
Poeschl diminished the monetary value of the trust
property to which she is lawfully entitled. She claimed
that she was aggrieved by the order of the Probate
Court because she will suffer an economic loss directly
attributable to the decree unless it is set aside.
Orsolya Burton filed a motion to dismiss the appeal
claiming that Burton was not aggrieved by the June 30,
2015 order and decree. The trust company joined the
motion to dismiss. The trial court, Vacchelli, J., granted
the motion to dismiss in a memorandum of decision
dated January 29, 2016. The court concluded that Bur-
ton was not aggrieved by the order and decree of the
Probate Court, which permitted the bypass of certain
trusts and allowed the settlor’s funds to be distributed
to the settlor’s beneficiaries.8
On July 15, 2016, the Jackson plaintiffs wrote a letter
to the Probate Court, stating, in part, that the trust
company ‘‘has breached its fiduciary duties and misap-
propriated $6670 of our subtrust funds by imposing its
litigation costs from [the 2015 appeal] onto our undis-
puted and completely separate inheritance. We ask
Your Honor to order [the trust company] to restore our
accounts in full and release the balance of our subtrusts
immediately.’’9 In response to their request, the Probate
Court held a hearing on August 23, 2016, and, thereafter,
on August 26, 2016, mailed a document titled ‘‘decree’’
to the plaintiffs, Kaplan, and the trust company. In the
document, the Probate Court stated that it found that
the trust company ‘‘acted in good faith pursuant to [its]
fiduciary duty in obtaining counsel for the [2015] appeal
[and the] . . . attorney’s fees incurred for the time
spent and hourly rate are reasonable.’’10 Consequently,
the Probate Court issued a decree stating: ‘‘the Court
takes no action at this time.’’11 On August 29, 2016,
the Jackson plaintiffs apparently resolved their dispute
with the trust company, and each of them signed a
Receipt, Release, and Indemnification Agreement.12
On October 3, 2016, Burton sent an e-mail to Drury
stating that she was notifying Drury ‘‘in advance of [her]
intended filing this week of a probate appeal as well
as a separate action seeking monetary damages for [the
trust company’s] bad faith and mismanagement of the
. . . trust.’’13 The probate appeal to which Burton was
referring concerned the proceedings in the Probate
Court on August 23, 2016. Thereafter, Drury sent an
e-mail to the Jackson plaintiffs informing them that if
Burton ‘‘proceeds as she has indicated, you will be held
personally responsible for the legal fees incurred [by
the trust company] due to the Receipt, Release and
Indemnity Agreements you previously signed.’’
On October 11, 2016, the plaintiffs filed the present
probate appeal. In their complaint, they alleged that on
August 23, 2016, the Probate Court issued a decree that
was mailed to them on August 26, 2016. On November
10, 2016, Kaplan, on behalf of Drury and the trust com-
pany, filed a motion to dismiss the probate appeal on
the ground that it was not filed within thirty days of
the date the decree was mailed as required by General
Statutes § 45-186 (a), and, therefore, the Superior Court
lacked subject matter jurisdiction. Burton filed an
objection to the motion to dismiss.14 The court, Bates,
J., granted the motion to dismiss and issued a memoran-
dum of decision on May 10, 2017.
In his memorandum of decision, Judge Bates found
that the Probate Court decree was mailed on August
26, 2016, that the appeal was filed on October 11, 2016,
and that the plaintiffs conceded that the appeal was
commenced after the limitation period of § 45a-186 (a),
which provides in relevant part that probate appeals
are to be taken ‘‘not later than thirty days after the
mailing of an order, denial or decree. . . .’’ The court
found that the plaintiffs’ appeal was taken well after
the thirty day period. Although the plaintiffs made many
arguments regarding the fairness of the Probate Court’s
decision regarding the distribution of assets, they never
established a basis for ignoring the applicable appeal
period. ‘‘[T]he meaning of the statute is plain and unam-
biguous. A party appealing to the Superior Court from
probate is required to commence the appeal by filing
the complaint with the court within thirty days of the
mailing of the challenged action.’’ Gates v. Gates, 51
Conn. Supp. 148, 152-53, 975 A.2d 147 (2008), aff’d, 115
Conn. App. 293, 971 A.2d 852, cert. denied, 293 Conn.
924, 980 A.2d 910 (2009). Judge Bates, therefore, stated
that the appeal deadline was jurisdictional and con-
cluded that, without compliance with the deadline, the
decision of the Probate Court must stand. The court
dismissed the plaintiffs’ appeal for lack of jurisdiction.
Thereafter, on May 26, 2017, Burton filed a motion for
reargument, which the court denied on June 6, 2017.15
Burton then filed two motions for articulation in the
trial court on June 12, 2017, on matters not directly
related to the dismissal of the probate appeal.16 The
plaintiffs appealed to this court on June 27, 2017.
We now turn to the two issues before us: (1) whether
Burton was aggrieved by the Probate Court’s decree
and, therefore, lacked standing to appeal, and (2)
whether the Superior Court properly dismissed the
plaintiffs’ appeal from the Probate Court’s decree
mailed on August 26, 2016, because it was untimely.
I
The trust company claims that Burton was not
aggrieved by the Probate Court’s decree and, therefore,
she lacked standing to appeal. We agree that Burton
lacked standing to appeal.
The following facts are relevant to the trust com-
pany’s claim. In its brief on appeal, the trust company
stated in a footnote that Burton was not aggrieved by
the Probate Court’s decree that was mailed on August
26, 2016, and, therefore, she lacked standing to argue the
appeal. The trust company also noted that the plaintiffs
sought to have the court order the trust company to
restore the attorney’s fees approved by the Probate
Court to the Jackson subtrusts. The trust company,
however, did not file a motion to dismiss Burton’s
appeal, and this court did not issue an order directing
the parties to be prepared at oral argument to address
the question of Burton’s standing. At oral argument, we
asked Burton to explain the basis of her allegation that
she was aggrieved by the Probate Court’s decree.17 Bur-
ton objected to the inquiry on the ground that she had
no notice that she would be expected to address the
question of her standing and requested an opportunity
to brief the issue. We granted her request to file a memo-
randum of law with respect to whether she was
aggrieved and permitted the trust company to file a
response.
Burton filed successive memoranda of law and stated
that the bases of her ‘‘aggrievement are manifest in the
record and relate in part to the fact that the release[s]
which [the Probate Court] directed the Jacksons to sign
had hidden, unexpressed potential negative conse-
quences for [her]. . . . That is . . . [what] Drury
stated in her October 5, 2016 email to the Jacksons
. . . sent ten days after the expiration of the appeal
period on September 26, 2016.’’18 In response to Burton,
the trust company argued, in part, that Burton had no
legally protected interest in the Estate of June K. Burton
that was adversely affected by the Probate Court’s
decree of August 23, 2016, approving the charge of
attorney’s fees to the Jackson plaintiffs.
‘‘The question of whether an order from probate
aggrieves a party concerns a trial court’s subject matter
jurisdiction.’’ In re Probate Appeal of Red Knot Acquisi-
tions, LLC, 147 Conn. App. 39, 42, 80 A.3d 594 (2013).
Subject matter jurisdiction is a question of law and,
therefore, our review is plenary. See Isaacs v. Ottavi-
ano, 65 Conn. App. 418, 421, 783 A.2d 485 (2001).
‘‘[S]tanding is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
of action, or a legal or equitable right, title or interest
in the subject matter of the controversy. . . . Never-
theless, [s]tanding is not a technical rule intended to
keep aggrieved parties out of court; nor is it a test
of substantive rights. Rather it is a practical concept
designed to ensure that courts and parties are not vexed
by suits brought to vindicate nonjusticiable interests
and that judicial decisions which may affect the rights
of others are forged in hot controversy, with each view
fairly and vigorously represented. . . . These two
objectives are ordinarily held to have been met when
a complainant makes a colorable claim of direct injury
he [or she] has suffered or is likely to suffer, in an
individual or representative capacity. Such a personal
stake in the outcome of the controversy . . . provides
the requisite assurance of concrete adverseness and
diligent advocacy.’’ (Internal quotation marks omitted.)
Geremia v. Geremia, 159 Conn. App. 751, 779–80, 125
A.3d 549 (2015).
‘‘Standing requires no more than a colorable claim
of injury; a [party] ordinarily establishes . . . standing
by allegations of injury [that he or she has suffered or
is likely to suffer]. Similarly, standing exists to attempt
to vindicate arguable protected interests. . . . Stand-
ing is established by showing that the party claiming it
is authorized by statute to bring suit or is classically
aggrieved. . . . The fundamental test for determining
[classical] aggrievement encompasses a well-settled
two-fold determination: first, the party claiming
aggrievement must successfully demonstrate a specific,
personal and legal interest in [the subject matter of
the challenged action], as distinguished from a general
interest, such as is the concern of all members of the
community as a whole. Second, the party claiming
aggrievement must successfully establish that this spe-
cific personal and legal interest has been specially and
injuriously affected by the [challenged action]. . . .
Aggrievement is established if there is a possibility, as
distinguished from a certainty, that some legally pro-
tected interest . . . has been adversely affected.’’
(Internal quotation marks omitted.) Wilcox v. Webster
Ins., Inc., 294 Conn. 206, 214–15, 982 A.2d 1053 (2009).
‘‘[A]s a general rule, a plaintiff lacks standing unless
the harm alleged is direct rather than derivative or indi-
rect. . . . [I]f the injuries claimed by the plaintiff are
remote, indirect or derivative with respect to the defen-
dant’s conduct, the plaintiff is not the proper party to
assert them and lacks standing to do so. Where, for
example, the harms asserted to have been suffered
directly by a plaintiff are in reality derivative of injuries
to a third party, the injuries are not direct but are indi-
rect, and the plaintiff has no standing to assert them.’’
(Citation omitted; internal quotation marks omitted.)
Wiederman v. Halpert, 178 Conn. App. 783, 795, 176
A.3d 1242 (2017), cert. granted on other grounds, 328
Conn. 906, 177 A.3d 1161 (2018).
Want of aggrievement is a defect that deprives the
Superior Court of jurisdiction to hear a probate appeal.
Baskin’s Appeal from Probate, 194 Conn. 635, 637, 484
A.2d 934 (1984). The question is whether the appellant
possibly has a legally protected interest in the estate
that has been adversely affected by the Probate Court.
See Erisoty’s Appeal from Probate, 216 Conn. 514, 519,
582 A.2d 760 (1990).
On the basis of our review of the allegations of the
complaint in the present case, we conclude that Burton
has failed to allege a colorable claim of direct personal
injury. The plaintiffs appealed from the Probate Court’s
August 23, 2016 finding that the attorney’s fees charged
to the Jackson plaintiffs’ subtrusts for the trust com-
pany’s defense of the 2015 appeal were reasonable.
Burton’s trust was in no way affected. Her alleged
injury, if any—and we do not conclude that there was
any—therefore, is indirect and amorphous as it derives
from the decree of the Probate Court that pertained to
the Jackson plaintiffs’ subtrusts. The Superior Court,
therefore, lacked subject matter jurisdiction over Bur-
ton’s appeal as she was not aggrieved by the Probate
Court decree and, therefore, lacked standing to appeal.19
II
The Jackson plaintiffs claim that the Superior Court
improperly dismissed their appeal from the Probate
Court decree mailed on August 26, 2016, on the basis
of timeliness. We disagree.
The Jackson plaintiffs’ appeal is controlled by § 45a-
186 (a), which provides, in relevant part: ‘‘Except as
provided in sections 45a-187 and 45a-188, any person
aggrieved by an order, denial or decree of a Probate
Court in any matter . . . may . . . not later than thirty
days after mailing of an order, denial or decree for
any matter in a Probate Court appeal therefrom to the
Superior Court. Such an appeal shall be commenced
by filing a complaint in the superior court in the judicial
district in which such Probate Court is located . . . .’’20
‘‘The right to appeal from the decision of a Probate
Court is purely statutory: General Statutes § 45-288
[now § 45a-186]; and the requirements fixed by statute
for taking and prosecuting the appeal must be met. The
Superior Court is without jurisdiction to entertain an
appeal from probate unless the appeal complies with
the conditions designated by statute as essential to the
exercise of this power.’’ Bergin v. Bergin, 3 Conn. App.
566, 568, 490 A.2d 543, cert. denied, 196 Conn. 806, 494
A.2d 903 (1985), overruled in part on other grounds,
289 Conn 795, 961 A.2d 365 (2008). Probate appeals
are properly commenced by filing a complaint in the
Superior Court. Id.
As our Supreme Court has stated: ‘‘It is axiomatic
that strict compliance with [the] terms [of § 45a-186] is
a prerequisite to an aggrieved party’s right to appeal and
to the Superior Court’s jurisdiction over the appeal.’’
Connery v. Gieske, 323 Conn. 377, 389, 147 A.3d 94
(2016). ‘‘[J]urisdiction over a probate appeal attaches
when the appeal is properly taken.’’ Heussner v. Hayes,
289 Conn. 795, 802, 961 A.2d 365 (2008).
‘‘[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.’’ (Internal quotation marks
omitted.) Burnell v. Chorches, 173 Conn. App. 788, 793,
164 A.3d 806 (2017). ‘‘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 pre-
scribed by law [does] the Superior Court [have] full
jurisdiction over [it].’’ (Internal quotation marks omit-
ted.) Id.
The timeline in the present case is not in dispute.
The Probate Court’s decree was mailed on August 26,
2016. The time in which the Jackson plaintiffs properly
may have filed an appeal expired on September 26,
2016. The plaintiffs’ appeal was filed in the Superior
Court on October 11, 2016. The trust company and
Drury filed a motion to dismiss on November 10, 2016.
Judge Bates dismissed the appeal in a memorandum of
decision on May 10, 2017, stating, in relevant part, that
the appeal was brought ‘‘well after the thirty day dead-
line.’’ The court also stated that the plaintiffs made
‘‘many arguments regarding the fairness of the decision
and distribution of assets, but they never establish a
basis for ignoring the applicable appeals period.’’
Burton filed a motion to reargue and to reconsider
the court’s judgment of dismissal in which she claimed
that the court’s memorandum of decision contained
factual errors, specifically, that the appeal challenged
‘‘the distribution of trust funds by the Probate Court.’’
Burton stated that the ‘‘appeal concerns the misappro-
priation of funds belonging to the [Jackson plaintiffs]
by a fiduciary, [the trust company] and its agents.’’
Judge Bates denied the motion to reargue stating that
the ‘‘plaintiffs seem to be arguing that this proceeding
was not a probate appeal, but rather, a claim of misap-
propriation of funds by the [trust company], and, there-
fore, it was inappropriate to dismiss the case. However,
the complaint states it is an ‘Appeal From Probate’ and
Exhibit A-1 of the complaint is the decision of the New
London Probate Court dated August 23, 2016. The par-
ties may have wished to address their allegations
against the [trust company] in the context of the appeal,
but that does not mean that they are somehow immune
from the appeal deadline and its jurisdictional ramifi-
cations.’’
Following the filing of the present appeal to this
court, the plaintiffs filed two motions for rectification/
articulation in this court dated June 27, and July 18,
2007.21 This court referred both motions to Judge Bates,
who denied the motion for rectification/articulation as
to the denial of the plaintiff’s motions for reargument.
In the trial court’s response, dated October 20, 2017,
the court stated that the plaintiffs were seeking to open
the judgment of dismissal for consideration of allega-
tions of fraud, deception, and bad faith on the part of
the trust company. The court again stated that its May
11, 2017 dismissal of the appeal was not made on the
merits of the appeal, but solely on its untimeliness. The
plaintiffs failed to bring the appeal within thirty days
of the Probate Court decree, and therefore, the Superior
Court lacked jurisdiction to hear the appeal or to open
the judgment of dismissal. The court also stated that
‘‘it appears that the plaintiffs are seeking to change the
approval of a probate accounting into a civil case
against [the trust company] for misappropriation and
fraud. However, the plaintiffs’ pleadings and accusa-
tions cannot change a late filed probate appeal into a
civil action.’’
On appeal in this court, the Jackson plaintiffs argue
that Judge Bates failed to consider whether the late
filing of their appeal was tolled by the doctrine of equita-
ble estoppel because Drury and the trust company alleg-
edly committed a fraud on them. Once they became
aware of the ‘‘trickery, bad faith, fraud, and unautho-
rized conduct of [the trust company and Drury] the
plaintiffs made haste to file the appeal to try to set
things right.’’ This argument fails as a matter of law
and of fact.
The doctrine of equitable tolling does not apply to
subject matter jurisdiction. ‘‘Our Supreme Court has
made clear that a court lacks the authority to apply
the doctrine of equitable tolling or otherwise exercise
discretionary authority to extend a limitations period
if the applicable statute of limitations constitutes a limit
on the court’s subject matter jurisdiction.’’ Turner v.
State, 172 Conn. App. 352, 360, 160 A.3d 398 (2017).
Once the jurisdictional deadline has passed, the court
is without subject matter jurisdiction, which cannot
be waived. See Williams v. Commission on Human
Rights & Opportunities, 257 Conn. 258, 266, 777 A.2d
645, aff’d after remand, 67 Conn. App. 316, 786 A.2d 1283
(2001). When a court lacks subject matter jurisdiction,
it has no authority to adjudicate the action before it.
See Angersola v. Radiologic Associates of Middletown,
P.C., 330 Conn. 251, 265, 193 A.2d 530 (2018).
Even if the jurisdictional time limit for filing a probate
appeal could be equitably tolled, the Jackson plaintiffs’
argument fails because the conduct of which they com-
plain occurred after the jurisdictional deadline had
passed. The factual basis of their argument is that Drury
told them in response to an e-mail Burton sent her on
October 5, 2016, that if Burton took an appeal from the
August 23, 2016 Probate Court decree, attorney’s fees
would be charged to them pursuant to the Receipt,
Release and Authorization they signed on August 29,
2016. See footnote 13 of this opinion. The alleged factual
basis of the equitable estoppel claim, therefore,
occurred after the thirty day time period in which to
appeal from the Probate Court decree expired. More-
over, the alleged factual basis was not material to the
issue decided by the Probate Court on August 23, 2016,
which was the reasonableness of the attorney’s fees
incurred by the trust company.
In his memorandum denying the plaintiffs’ motion
for rectification/articulation, Judge Bates stated: ‘‘[i]t
appears that the plaintiffs are seeking to change the
approval of a probate accounting into a civil case
against [the trust company] for misappropriation and
fraud. However, the plaintiffs’ pleadings and accusa-
tions cannot change a late filed probate appeal into a
civil action.’’ We agree with the Superior Court’s assess-
ment of the plaintiffs’ claim. Moreover, when sitting as
a Probate Court, the Superior Court does not sit as a
court of general jurisdiction.
The case of Marshall v. Marshall, 71 Conn. App. 565,
803 A.2d 919, cert. denied, 261 Conn. 941, 808 A.2d 1132
(2002), a probate appeal, is instructive. The plaintiff in
Marshall claimed, among other things, that the Superior
Court deprived her of due process by failing to hold an
evidentiary hearing to determine whether her attorney
had engaged in misconduct by withdrawing her probate
appeal from the jury docket. Id., 569. In resolving the
appeal, this court first addressed a jurisdictional issue
that was implicit in the claim and determined that the
claim failed because the court did not have jurisdiction
to hold such an evidentiary hearing.
‘‘[W]ith regard to appeals from probate, our case law
states that [a]n appeal from a probate order or decree
to the Superior Court is not a civil cause of action. It
has no more of the ordinary attributes of a civil action
than the original proceedings in the court of probate.
. . . [A]ppeals from probate are not civil actions
because it has always been held that the Superior Court,
while hearing appeals from probate, sits as a court of
probate and not as a constitutional court of general or
common-law jurisdiction. It tries the questions pre-
sented to it de novo, but in so doing it is . . . exercising
a special and limited jurisdiction conferred on it by the
statute authorizing appeals from probate. . . .
‘‘In a probate appeal, the Superior Court cannot con-
sider events that occurred after the issuance of the
order or decree appealed form. . . . The appeal brings
to the Superior Court only the order appealed from.
The order remains intact until modified by a judgment
of the Superior Court after a hearing de novo on the
issues presented for review by the reasons of appeal.
. . . The Superior Court may not consider or adjudicate
issues beyond the scope of those proper for determina-
tion by the order or decree attacked. . . . Inasmuch
as the motion for the appeal is made in the Court of
Probate and forms a part of the proceedings in that
court, no amendment to it may be made in the Superior
Court. The Superior Court, therefore, cannot enlarge
the scope of the appeal.’’ (Internal quotation marks
omitted.) Id., 569–70.
In the present case, the plaintiffs failed to file an
appeal from the Probate Court’s August 23, 2016 decree
within thirty days of when it was mailed on August 26,
2016. The plaintiffs sought to have the court reconsider
its decision by alleging that the trust company and Drury
were guilty of fraud and deception with respect to the
Receipt, Release, and Indemnity Agreement. The thirty
day appeal period, however, had expired at the time of
the defendants’ alleged deceptive acts. Moreover, such
allegations were not within the jurisdictional purview
of the Superior Court sitting as a court of probate.
We, therefore, affirm the Superior Court’s judgment
of dismissal.22
The judgment is affirmed.
In this opinion, the other judges concurred.
1
The law firm of Gould Larson Bennet & O’Donnell (law firm) and Amanda
Kaplan, an attorney with the law firm, also were cited as defendants in the
plaintiffs’ appeal to the Superior Court. Drury, Kaplan, and the law firm,
however, were not parties to the August 23, 2016 Probate Court proceeding.
The trust company is the only defendant that is a party to the present appeal.
2
The plaintiffs claim that the trial court improperly determined that Gen-
eral Statutes § 45a-186 (a) is jurisdictional; failed to consider whether the
facts and circumstances of the present matter qualify for the application of
the doctrine of equitable estoppel and waiver of the thirty day appeal period;
failed to consider whether General Statutes § 52-595, the fraudulent conceal-
ment statute, tolled the appeal period; committed reversible error in not
addressing the central issue presented in the appeal; and failed to disclose
its potential conflicts of interest and bias. The plaintiffs also claim that the
Probate Court’s notice was defective and deprived them of due process. In
the alternative, the plaintiffs claim that the appeal is premature.
3
The plaintiffs submitted a joint brief and a joint reply brief. Burton, a
disbarred attorney, appeared and presented an oral argument on her own
behalf. The Jackson plaintiffs did not present an oral argument.
4
An appellate court may take judicial notice of files in the same or other
cases. See St. Paul’s Flax Hill Co-operative v. Johnson, 124 Conn. App. 728,
739 n.10, 6 A.3d 1168 (2010), cert. denied, 300 Conn. 906, 12 A.3d 1002 (2011).
5
The trust directed that in the event one of the settlor’s children dies
prior to a distribution of trust property, the deceased child’s share of trust
property shall be deemed to have lapsed and shall be divided among the
deceased child’s children. When John Burton died, subtrusts were estab-
lished for that purpose.
6
The Probate Court’s June 30, 2015 order and decree stated in relevant
part: ‘‘An amended final account was submitted to this court by Attorney
Patrick Poeschl. The time period covered in this accounting is March 30,
2015 through June 8, 2015. It is uneconomical and costly to have the distribu-
tion flow from the estate, to the June Burton Trust to the Milton Burton
Trust and then to the beneficiaries, when the estate can distribute directly
to the beneficiaries. At issue is the construction of the trust and distribution
to those taking under John Burton. Attorney Poeschl shall file a petition
to construct the terms of the Trust for proper distribution.
‘‘And it is ordered and decreed that: accounting approval and distribution
approved except for distribution to those taking under John Burton. Distribu-
tion shall be determined upon a decision by the Court on the trust construc-
tion. Attorney Poeschl has met all the requirements set forth in [General
Statutes §] 45a-482 and 45a-484, to terminate the trusts re-established for
Margaret Burton Jackson and Miarden Jackson, and allow for distribution to
bypass trusts and distribute directly to the beneficiaries.’’ (Emphasis added.)
7
Orsolya Burton is John Burton’s second wife; Julia Burton is their daugh-
ter. Kaplan and the law firm represented the trust company in the 2015
appeal.
8
Judge Vacchelli’s memorandum of decision stated in relevant part that
Poeschl recovered $62,883.99 of the settlor’s unclaimed funds from the state
treasurer. In his amended final account, Proeschl proposed to distribute all
of the funds to the beneficiaries in accordance with a schedule, except
$963.99, which was reserved for fiduciary income tax purposes and $6880
for a later Probate Court determination as to how to distribute the sum
among certain persons potentially taking shares due to the death of John
Burton. Poeschl proposed giving $10,320 to Burton, which was one-sixth of
the total unclaimed funds recovered less the reserve for tax purposes.
Judge Vacchelli found no merit to Burton’s contention that termination
of the trust as proposed by Poeschl will diminish the monetary value of the
trust property unnecessarily and that the decree will diminish the value of
the trust property to which she is lawfully entitled. The court could not
discern how Burton sustained an economic loss or any other adverse effect
to her interests. There are no trustee charges involved in the Probate Court
decree and there are no claims that the estate fees are otherwise excessive.
The court, therefore, found that Burton was not aggrieved to bring the
appeal and dismissed it.
Burton filed an appeal to this court from the judgment of dismissal ren-
dered by Judge Vacchelli. She, however, withdrew the appeal on July 29,
2016.
9
In response to the Jackson plaintiffs’ letter, Kaplan wrote to the Probate
Court on behalf of the trust company stating in part, that in the 2015 probate
appeal, Burton ‘‘specifically appealed the termination of the Jacksons’
Trusts, at which point [the trust company] was unable to complete the
terminations of the Trusts and distribute the funds held therein. As is appro-
priate under well established law, the [trust company as trustee] hired [the
law firm], to defend the termination of the Trusts, as required under [General
Statutes] § 51-88. As is equally appropriate, the [trust company] paid the
legal fees related to the representation directly from the Trusts. [General
Statutes] § 45a-234 (19) and Article X of the June K. Burton Revocable Trust
. . . . As is well-settled law: The trustee must do what is necessary within
the bounds of law and reason to defend the trust and thus may retain counsel
for that purpose and is entitled to have the costs of such representation
absorbed by the trust.’’ Kaplan cited legal authority for the trust’s position.
10
The court stated in full: ‘‘After due hearing, the court finds that . . .
Margaret Jackson and Miarden Jackson filed a request for a hearing regarding
[the trust company’s] fiduciary duties and purported misappropriation of
funds from the [settlor’s] estate. The issue presented to the court by the
petitioner is solely stated to be the attorney[’s] fees incurred and allocated
to the subtrusts. The court finds that the [trust company] acted in good
faith pursuant to [its] fiduciary duty in obtaining counsel for the appeal
from the Probate Court decision dated June 30, 2015. The review of attorney’s
fees incurred for the time spent and hourly rate are reasonable. The [trust
company] has agreed to not pass on the charge to the beneficiaries the
balance of $960.00 of attorney’s fees along with additional fees incurred in
this matter.
‘‘And it is ordered and decreed that: Based on the foregoing, the court
takes no action at this time.’’ (Emphasis added.)
11
Although the Probate Court did not use the word decree, the parties
have treated the Probate Court document signed on August 23, 2016, and
mailed on August 26, 2016, as a decree. A decree ‘‘is a judicial decision in
a court of equity, admiralty, divorce or probate . . . .’’ Black’s Law Diction-
ary (10th Ed. 2014). We conclude that the subject document is a decree. In
their brief on appeal, the plaintiffs repeatedly refer to the document as a
decree. Section 45a-186 (a) provides in relevant part that ‘‘any person
aggrieved by any order, denial or decree of a Probate Court . . . may . . .
appeal therefrom to the Superior Court.’’
12
The Receipt, Release and Indemnity Agreement that each of the Jackson
plaintiffs signed on August 29, 2016, states in relevant part: ‘‘I agree, for
myself and my heirs, successors and assigns to release, indemnify and hold
harmless [the trust company], and its successors, from any and all claims,
demands, suits, judgments, costs, expenses, attorney’s fees and all losses
and damages of every kind and character whatsoever arising out of the
administration of the Trust.’’
13
The full text of Burton’s e-mail to Drury states: ‘‘I am notifying you in
advance of my intended filing this week of a probate appeal as well as a
separate action seeking monetary damages for [the trust company’s] bad
faith and mismanagement of the . . . Trust.
‘‘I intend to name you personally in addition to [the trust company] as
well as the law firm which has been representing [the trust company].
‘‘I will agree to forego these actions if [the trust company] agrees to return
in full to Margaret Jackson and Miarden Jackson the money it misappropri-
ated from the . . . Trust.
‘‘I will need your response by close of business on October 5, 2016.’’
14
In her objection to the motion to dismiss, Burton stated that the appeal
was taken beyond the thirty day appeal period, six days after Drury made
the Jackson plaintiffs aware that the releases she directed them ‘‘to sign
under duress for release of their inheritance as administered by [the trust
company] to assess attorney’s fees against [them] should a probate appeal
be taken by any person challenging the August 26, 2016 Probate Court order
and decree, inter alia, regardless of whether [they] participated in such
probate appeal or were even aware of it. Neither [the trust company] nor . . .
Drury notified Burton . . . that her sister . . . and nephew . . . would be
held liable by [the trust company] should [Burton] take an appeal of the
Probate Court order and decree.’’
15
In denying the motion to reargue, Judge Bates stated that Burton seemed
to be arguing that the proceeding was not a probate appeal, but a claim
of misappropriation of funds by the trust company and, therefore, it was
inappropriate to dismiss the case. The complaint, however, states that it is
an appeal from probate and the Probate Court’s August 23, 2016 decree is
appended as an exhibit. Although Burton may have wanted to address
allegations against the trust company in the context of the appeal, that
does not mean that she ‘‘was immune from the appeal deadline and its
jurisdictional ramifications.’’
16
The first motion for articulation filed in the trial court sought articulation
as to the court’s denial of Burton’s motions for reargument and the second
motion for articulation filed in the trial court sought articulation as to the
‘‘Plaintiff’s Request for Disclosure,’’ filed on May 30, 2017, and Burton’s
‘‘Correction to Plaintiff’s Request for Disclosure,’’ filed on June 5, 2017.
17
‘‘[A] question of subject matter jurisdiction may be raised at any time,
including sua sponte invocation by a reviewing court.’’ (Internal quotation
marks omitted.) Geremia v. Geremia, 159 Conn. App. 751, 779 n.17, 125
A.3d 549 (2015).
18
Burton argued that the ‘‘[trust company]/Drury’s trickery came in three
parts: first by withholding this information during the probate proceedings
and from [the Probate Court] as they persuaded him to direct the Jacksons
to sign ‘whatever release [the trust company] prepared’ to avoid forfeiture
of their remaining inheritance; second by withholding notice of this to the
Jacksons until after the appeal period had expired and third by failing to
provide direct notice at any time to [her] or obtain her consent.’’
19
The trust company did not raise the issue of Burton’s standing in the
appeal to the Superior Court. Although the Superior Court did not dismiss
Burton’s appeal due to her lack of standing, we may affirm the court’s
decision on alternative grounds. ‘‘[W]e . . . may affirm the court’s judgment
on a dispositive [alternative] ground for which there is support in the trial
court record.’’ (Internal quotation marks omitted.) CitiMortgage, Inc. v.
Tanasi, 176 Conn. App. 829, 839 n.5, 171 A.3d 516, cert. denied, 327 Conn.
978, 174 A.3d 801 (2017). See part II of this opinion.
20
On appeal, the plaintiffs argue that the time limitation in ‘‘§ 45a-186 (a) is
directory, not mandatory and, therefore, is not subject matter jurisdictional.’’
They argue that in imposing a time limitation, the legislature can manifest
an intent to make the time constraint mandatory and not waivable. Whether
the statute employs the word may or shall is determinant of the legislature’s
intent. The plaintiffs claim that because the statute employs the word may,
and not the word shall, the time limitation is not jurisdictional.
We disagree with the plaintiffs’ construction of the statute. The use of
the word may in the statute grants a person aggrieved by an action of the
Probate Court the right to appeal, i.e., may appeal. The time in which an
appeal is to be filed is set off by commas, from the language granting the
right to appeal. The plaintiffs’ argument is unpersuasive.
21
Burton’s second motion for rectification and articulation concerned her
request for disclosure filed on May 30, 2017, in which she questioned Judge
Bates’ impartiality, including his association with a former vice president
and trust officer of the trust company and whether he received any revenue
for litigation concerning the Millstone nuclear power station when he was
a partner at the law firm of Robinson & Cole, LLC. She also asked the court
to articulate why the court’s order in response to her motion for extension
of time was dated June 19, 2017, but not mailed to her until June 29, 2017.
On October 20, 2017, the court responded to Burton’s second motion for
rectification and articulation, stating in part that it had no control over the
mailing of orders from the court, that it was not aware of any facts that
potentially give rise to its disqualification on the basis of bias, prejudice or
conflict of interest, and that it ‘‘was not aware of any actions or relationships
that would lead an impartial person to question [the court’s] impartiality
regarding the plaintiffs.’’
22
The plaintiffs also claim that the time limitation in § 45a-186 (a) can be
waived. We disagree. Subject matter jurisdiction may not be waived. See
Williams v. Commission on Human Rights & Opportunities, supra, 257
Conn. 266.