Davis v. Davis-Henriques

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
VERNON G. DAVIS, JR. v. TONETTE
DAVIS-HENRIQUES ET AL.
(AC 37495)
Gruendel, Lavine and Prescott, Js.
Argued December 8, 2015—officially released February 23, 2016
(Appeal from Superior Court, judicial district of
Hartford, Hon. Richard M. Rittenband, judge trial
referee.)
Nitor V. Egbarin, for the appellant (plaintiff).
Catherine A. Wilowski, for the appellees (named
defendant et al.).
Opinion
GRUENDEL, J. The plaintiff, Vernon G. Davis, Jr.,
appeals from the judgment of the Superior Court dis-
missing his appeal from an order of the Probate Court.
On appeal, he challenges the propriety of that dismissal.
We affirm the judgment of the Superior Court.
The relevant facts are gleaned from the plaintiff’s
complaint, its accompanying exhibits, and the undis-
puted record before us. The decedent, Edna G. Banks,
died on October 26, 2012. The defendant Tonette Davis-
Henriques1 thereafter filed a petition for the administra-
tion of the decedent’s estate with the Probate Court for
the district of Greater Windsor. That petition listed the
decedent’s six children, including the plaintiff and the
defendant, as heirs. The petition further represented
that the decedent left no will, noting that the plaintiff
‘‘says there is a will [but] he can’t find it.’’ Weeks later,
the plaintiff filed a similar petition with the Probate
Court, in which he represented that the decedent had
left a last will and testament (will).2 Although signed
by the decedent and acknowledged by a notary public,
Shaundra Byrd, the will furnished to the Probate Court
was not attested by two witnesses,3 as required by Gen-
eral Statutes § 45a-251.4
The Probate Court conducted a hearing on those
petitions, which the parties attended. On November 5,
2013, the Probate Court issued a decree appointing the
defendant as administratrix of the decedent’s estate. In
that decree, the Probate Court specifically found that
‘‘[t]he will is not duly proved, and the same is not
approved and not admitted to probate as the LAST WILL
AND TESTAMENT of the deceased.’’ (Emphasis in orig-
inal.) The plaintiff did not appeal from that decree to
the Superior Court. See General Statutes § 45a-186 (a).
Approximately nine months later, the plaintiff, now
aided by legal counsel, filed a ‘‘motion for order admit-
ting will into probate.’’ In that motion, the plaintiff
sought to have admitted into probate the very same
will that the Probate Court deemed invalid in its Novem-
ber 5, 2013 decree. Appended to that motion were the
July 31, 2014 affidavits of the plaintiff, his wife, Jennette
Davis, and Byrd, which all averred that the plaintiff,
Jennette Davis, and Byrd5 witnessed the decedent sign-
ing the will. In response, the defendant filed an objec-
tion in which she argued that the plaintiff was seeking
‘‘another bite at the apple’’ after failing to appeal the
November 5, 2013 decree pursuant to § 45a-186 (a). The
defendant further argued that the will submitted by the
plaintiff failed to comply with the requirements of § 45a-
251. Following a hearing, the Probate Court on August
19, 2014, denied the plaintiff’s motion, finding that ‘‘[t]he
will which was sought to be admitted was one and the
same document which was presented for probate [and]
was not admitted for probate pursuant to the [decree] of
November 5, 2013, by the Probate Court.’’ The Probate
Court, quoting General Statutes § 45a-24, emphasized
that ‘‘[a]ll orders, judgments and decrees of courts of
probate, rendered after notice and from which no
appeal is taken, shall be conclusive and shall be entitled
to full faith, credit and validity and shall not be subject
to collateral attack, except for fraud.’’6
From that order, the plaintiff appealed to the Superior
Court. In response, the defendant, individually and as
administratrix, moved to dismiss the probate appeal.
Following a hearing, the Superior Court granted that
motion, and this appeal followed.
I
As a threshold matter, we note that the plaintiff
brought this probate appeal pursuant to § 45a-186. That
statute 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 section 45a-593, 45a-594,
45a-595 or 45a-597, sections 45a-644 to 45a-677, inclu-
sive, or sections 45a-690 to 45a-705, inclusive, and not
later than thirty days after mailing of an order, denial or
decree for any other matter in a Probate Court, appeal
therefrom to the Superior Court. . . .’’ General Statutes
§ 45a-186 (a). It is undisputed that the plaintiff’s appeal
to the Superior Court was commenced in a timely man-
ner. The Superior Court thus was vested with jurisdic-
tion over the plaintiff’s appeal of the Probate Court’s
August 19, 2014 order denying his motion to admit the
will into probate.
II
Accordingly, a dismissal of the plaintiff’s appeal for
lack of subject matter jurisdiction cannot stand. Yet
the court’s November 10, 2014 order contains no refer-
ence to the term ‘‘jurisdiction.’’ In construing a judg-
ment, we are mindful that we must ‘‘examine the
practical effect of the trial court’s ruling in order to
determine its nature.’’ In re Haley B., 262 Conn. 406,
413, 815 A.2d 113 (2003). Although the Superior Court,
in its November 10, 2014 order, formally granted the
motion to dismiss filed by the defendant, a review of
the record—and that order in particular—reveals that
the court viewed the substance of that filing as a chal-
lenge to the legal sufficiency of the plaintiff’s pleading.
See Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d
1322 (1993) (motion to dismiss not designed to test
legal sufficiency of complaint); Egri v. Foisie, 83 Conn.
App. 243, 247, 848 A.2d 1266 (‘‘[t]here is a significant
difference between asserting that a plaintiff cannot
state a cause of action and asserting that a plaintiff
has not stated a cause of action, and therein lies the
distinction between the motion to dismiss and the
motion to strike’’ [emphasis in original]), cert. denied,
271 Conn. 931, 859 A.2d 930 (2004). In its November
10, 2014 order, the court first acknowledged that the
plaintiff’s appeal from the Probate Court’s August 19,
2014 denial of his motion to admit the will into probate
was timely. The court nonetheless ruled that ‘‘no evi-
dence has been produced as to fraud, mistake, or undue
influence. . . . [T]he denial by the Probate Judge . . .
was on the basis that there were no witnesses to the
will. Subsequent affidavits from alleged witnesses are
not sufficient. The witnesses must sign the will. The
complaint . . . is merely another attempt to overturn
the November 5, 2013 decision . . . .’’7
It is well established that ‘‘despite the [party’s] or the
trial court’s characterization of the motion, we examine
the practical effect of the trial court’s ruling in order
to determine its nature.’’ In re Haley B., supra, 262
Conn. 412–13. ‘‘Only then can we determine whether
the ruling was proper.’’ Jaser v. Jaser, 37 Conn. App.
194, 202, 655 A.2d 790 (1995). It appears plain to us
that, in rejecting the plaintiff’s allegation of substantial
compliance with § 45a-251 predicated on the affidavits
of the plaintiff, Jennette Davis, and Byrd, the Superior
Court did not decide a matter of subject matter jurisdic-
tion, but rather found the complaint to be legally insuffi-
cient. See, e.g., Fort Trumbull Conservancy, LLC v.
Alves, 262 Conn. 480, 497, 815 A.2d 1188 (2003) (after
first concluding that trial court improperly granted
motions to dismiss, court then held that ‘‘the factual
allegations of the complaint were insufficient to support
the plaintiff’s claims for relief’’ and thus ‘‘properly were
subject to a motion to strike’’); McCutcheon & Burr,
Inc. v. Berman, 218 Conn. 512, 527–28, 590 A.2d 438(1991) (explaining that ‘‘[a]lthough the trial court should
have treated the motion to dismiss as a motion to
strike,’’ granting of motion to dismiss was harmless
despite being ‘‘procedurally incorrect’’ when operative
pleadings could not survive motion to strike); Mercer
v. Rodriquez, 83 Conn. App. 251, 267–68, 849 A.2d 886(2004) (expressly following Fort Trumbull Conser-
vancy, LLC, and McCutcheon & Burr, Inc., in holding
that granting of motion to dismiss was ‘‘procedurally
improper’’ but harmless error).
In light of the foregoing authority and the substance
of the court’s November 10, 2014 order, we consider
the legal sufficiency of the plaintiff’s complaint. Our
review of that issue is plenary. Doe v. Hartford Roman
Catholic Diocesan Corp., 317 Conn. 357, 398, 119 A.3d
462 (2015). ‘‘We take the facts to be those alleged in
the complaint . . . and we construe the complaint in
the manner most favorable to sustaining its legal suffi-
ciency.’’ (Internal quotation marks omitted.) Doe v. Yale
University, 252 Conn. 641, 667, 748 A.2d 834 (2000).
While ‘‘pleadings must be construed broadly and realis-
tically, rather than narrowly and technically’’; (internal
quotation marks omitted) Gazo v. Stamford, 255 Conn.
245, 260, 765 A.2d 505 (2001); a motion to strike ‘‘is
properly granted if the complaint alleges mere conclu-
sions of law that are unsupported by the facts alleged.’’
Novametrix Medical Systems, Inc. v. BOC Group, Inc.,
224 Conn. 210, 215, 618 A.2d 25 (1992).
The admissibility of the will presented to the Probate
Court by the plaintiff was decided by that court in
2013. In its November 5, 2013 decree, the Probate Court
concluded that ‘‘[t]he will is not duly proved, and the
same is not approved and not admitted to probate as
the LAST WILL AND TESTAMENT of the deceased.’’
(Emphasis in original.) The plaintiff received notice of
that decree but did not appeal therefrom. As a result,
Connecticut law commands that the November 5, 2013
decree is ‘‘conclusive and shall be entitled to full faith,
credit and validity and shall not be subject to collateral
attack, except for fraud.’’ General Statutes § 45a-24; see
also Ferraiolo v. Ferraiolo, 157 Conn. App. 350, 357,
116 A.3d 366 (2015) (‘‘§ 45a-24 prevents persons from
appearing before a trial court to contest a probate
court’s order without first filing an appeal from that
order’’). For that reason, ‘‘[a] Probate Court decree is
conclusive . . . until or unless the decree is disaf-
firmed on appeal. . . . [T]he decree of a court of pro-
bate, in a matter within its jurisdiction, is as conclusive
upon the parties, as the judgment or decree of any other
court; and the superior court as a court of equity, has
no more power to correct, alter, or vary it, than it has
to alter or vary the judgments of any other court in
the state.’’ (Citation omitted; internal quotation marks
omitted.) Silverstein v. Laschever, 113 Conn. App. 404,
414, 970 A.2d 123 (2009). The probate decree at issue
in this case concerns the validity of a will, a matter
over which the Probate Court possesses exclusive juris-
diction. Ferris v. Faford, 93 Conn. App. 679, 691, 890
A.2d 602 (2006).
Because no appeal was taken from the Probate
Court’s November 5, 2013 decree declaring the will
invalid, that decree remained conclusive upon the par-
ties. As such, the plaintiff’s July 31, 2014 motion to admit
the will into probate more properly is characterized as
a motion to open and set aside the November 5, 2013
decree.8 That motion alleged that, in light of the afore-
mentioned affidavits of the plaintiff, Jennette Davis,
and Byrd, the will substantially complied with § 45a-
251. The plaintiff therefore claimed that ‘‘the error in
not having’’ any witnesses sign the will was a ‘‘harmless
error.’’ The Probate Court rejected that contention and
declined to revisit its prior decree.9 In so doing, the
Probate Court expressly relied on the statutory impera-
tive set forth in § 45a-24, which insulates such decrees
from collateral attack.
That procedural history informs our analysis. On
appeal, the substantive issue before the Superior Court
was not whether the Probate Court properly declined
to admit the will into probate; that issue conclusively
was decided in the fall of 2013, when the plaintiff did
not appeal from the November 5, 2013 decree. See Sil-
verstein v. Laschever, supra, 113 Conn. App. 414.
Rather, the issue was whether the Probate Court prop-
erly declined to revisit its prior decree.
Pursuant to § 45a-24, on which the Probate Court
relied in denying the plaintiff’s motion, ‘‘[a]ll orders,
judgments and decrees of courts of probate, rendered
after notice and from which no appeal is taken, shall
be conclusive and shall be entitled to full faith, credit
and validity and shall not be subject to collateral attack,
except for fraud.’’ To mount a collateral attack on the
November 5, 2013 decree of the Probate Court, the
plaintiff thus was obligated to allege, in his complaint
before the Superior Court, that the decree was procured
by ‘‘fraud, mistake or like equitable ground.’’ Miller v.
McNamara, 135 Conn. 489, 496, 66 A.2d 359 (1949).10
That he has not done. The determination in the Novem-
ber 5, 2013 decree that the will was ‘‘not duly proved’’
is consistent with the precedent of our Supreme Court
requiring the proponent of a will to demonstrate strict
compliance with § 45a-251. See Gardner v. Balboni, 218
Conn. 220, 225–26, 588 A.2d 634 (1991). Indeed, the
plaintiff has conceded, before the Probate Court, the
Superior Court, and now this appellate body, that the
written instrument at issue does not strictly comply
therewith.11 Absent from his complaint are allegations
that the Probate Court’s November 5, 2013 decree was
procured by fraud, mistake, or other like ground.12 With-
out such allegations, he cannot demonstrate that the
Probate Court improperly denied his July 31, 2014
motion to admit the will into probate.
Perhaps mindful of that pleading deficiency, the
plaintiff asks this court to modify the applicable legal
standard under which the validity of a will is measured.
As he states in his appellate brief: ‘‘The plaintiff respect-
fully requests this Court to excuse the mistake in the
will not being subscribed by two witnesses and requests
the adoption in Connecticut of the provision by [1]
Restatement (Third), Property, Wills and Other Dona-
tive Transfers § 3.3 [p. 217 (1999)], that ‘a harmless error
in executing a will may be excused if the proponent
establishes by clear and convincing evidence that the
decedent adopted the document as his or her will.’ ’’13
For two distinct reasons, we decline that request.
First, the question of what constitutes due execution
of a will is a statutory issue. Wheat v. Wheat, 156 Conn.
575, 578, 244 A.2d 359 (1968). ‘‘[I]t must be conceded
to be within the rightful authority of the legislature . . .
to change the formalities previously prescribed for the
due execution of wills . . . .’’ Lane’s Appeal From Pro-
bate, 57 Conn. 182, 186, 17 A. 926 (1889). Although the
plaintiff invites this court to rewrite the requirements
of § 45a-251, we decline to do so, as that remains prop-
erly the province of our General Assembly.
Second, the plaintiff’s request asks us to depart from
the precedent of this state’s highest court. In Gardner
v. Balboni, supra, 218 Conn. 225, our Supreme Court
held that, in a probate appeal before the Superior Court,
the proponent of the will ‘‘must prove . . . that the
will’s execution was in compliance with the statute in
effect at the time it was executed.’’ The court explained
that ‘‘[t]o be valid, [the] will must comply strictly with
the requirements’’ of § 45a-251. (Emphasis added.) Id.;
see also Smuda v. Smuda, 153 Conn. 430, 432, 217
A.2d 59 (1966) (wills act ‘‘is not only directory but also
prohibitive and exhaustive’’). Accordingly, the court in
Gardner described its ‘‘task’’ on appeal as a determina-
tion of ‘‘whether there was sufficient factual evidence
to support the [Superior Court’s] conclusion that the
will was executed in strict compliance with the statu-
tory requirements . . . .’’ Gardner v. Balboni, supra,
226. It is axiomatic that, as an intermediate appellate
tribunal, this court is not free to depart from or modify
the precedent of our Supreme Court. See Hartford
Steam Boiler Inspection & Ins. Co. v. Underwriters at
Lloyd’s & Cos. Collective, 121 Conn. App. 31, 48–49,
994 A.2d 262, cert. denied, 297 Conn. 918, 996 A.2d 277(2010). Because our Supreme Court has articulated a
‘‘rule of strict compliance with the wills act’’; Gardner
v. Balboni, supra, 228; we cannot depart from that rule
and adopt the harmless error exception proposed by
the plaintiff.
To be valid, § 45a-251 requires a will to contain the
written attestations of two witnesses. Our Supreme
Court has held that a proponent of a will must demon-
strate strict compliance with that statute. Gardner v.
Balboni, supra, 218 Conn. 225. The plaintiff has not
pleaded any facts alleging such compliance. The plain-
tiff further has conceded that he cannot allege such
facts and, for that reason, he has asked us to recognize a
harmless error exception to that statutory requirement,
which we cannot do. Lastly, the plaintiff’s complaint
does not set forth a colorable claim that the Probate
Court’s November 5, 2013 decree was procured by
fraud, mistake, or like equitable ground. As a result,
the plaintiff’s complaint is legally insufficient, and there
is nothing in the record to suggest that the plaintiff
could amend his complaint to allege a viable claim for
relief under § 45a-24. See Fort Trumbull Conservancy,
LLC v. Alves, supra, 262 Conn. 501–502. We therefore
conclude that, although procedurally incorrect, the
judgment of the Superior Court granting the defendant’s
motion to dismiss this probate appeal constitutes harm-
less error. See McCutcheon & Burr, Inc. v. Berman,
supra, 218 Conn. 528, 531 (affirming judgment of dis-
missal because ‘‘although the defendants’ motion to
dismiss was procedurally incorrect, the resulting fore-
closure of the plaintiff’s ability to amend was harm-
less’’); Mercer v. Rodriquez, supra, 83 Conn. App.
267–68 (same).
The judgment is affirmed.
In this opinion the other judges concurred.
1
Also named as defendants in the plaintiff’s complaint are Gerald L. Davis,
Suzette J. Davis, Philip L. Davis, and Lisa Banks. None of those parties filed
appearances in the Superior Court or this court. We therefore refer to
Tonette Davis-Henriques as the defendant in this opinion.
2
The plaintiff’s petition indicates that he was self-represented at that time.
3
The will submitted to the Probate Court by the plaintiff is dated November
10, 2011, and contains four pages. On its second page, the decedent states
in relevant part that ‘‘I give all . . . of my property, whether real or personal,
wherever located, to [the plaintiff], my son . . . .’’ The decedent signed the
will as testator on the third page. The will then contains the following
statement: ‘‘We, the undersigned, being first sworn on oath and under penalty
of perjury, state that: On [blank space] . . . in the presence of all of us,
the above-named Testator published and signed this Last Will and Testament,
and then at Testator’s request, and in Testator’s presence, and in each other’s
presence, we all signed below as witnesses, and we declare, under penalty
of perjury that, to the best of our knowledge, the Testator signed this
instrument freely, under no constraint or undue influence, and is of sound
mind and legal age.’’ The will then provides space for the signatures, printed
names, and addresses of three witnesses. That portion of the will is blank
and not completed in any manner.
The ‘‘Notary Acknowledgement’’ on page four of the will likewise fails to
identify any witnesses. It states that ‘‘[o]n November 10, 2011, the Testator,
Edna G. Banks, and [blank space] the witnesses, personally came before
me and, being duly sworn, did state that they are the persons described in
the above document and that they signed the above document in my presence
as a free and voluntary act for the purposes stated.’’
4
General Statutes § 45a-251, known also as the wills act, provides in
relevant part: ‘‘A will or codicil shall not be valid to pass any property unless
it is in writing, subscribed by the testator and attested by two witnesses,
each of them subscribing in the testator’s presence . . . .’’
5
Although her affidavit states that the decedent ‘‘requested me and the
other witnesses to act as witnesses to her will,’’ Byrd signed only the ‘‘Notary
Acknowledgement’’ portion of the will. Byrd did not complete in any manner
the portion of the will dedicated to the signatures, names and addresses
of witnesses.
6
We note that ‘‘Probate Court decrees . . . are final judgments for the
purpose of the doctrine of res judicata.’’ Gaynor v. Payne, 261 Conn. 585,
596, 804 A.2d 170 (2002); Zanoni v. Lynch, 79 Conn. App. 325, 338, 830 A.2d
314, cert. denied, 266 Conn. 928, 837 A.2d 803 (2003). At the same time,
‘‘[r]es judicata does not provide the basis for a judgment of dismissal; it is
a special defense that is considered after any jurisdictional thresholds are
passed.’’ Labbe v. Pension Commission, 229 Conn. 801, 816, 643 A.2d 1268(1994); see also State v. T.D., 286 Conn. 353, 360 n.6, 944 A.2d 288 (2008)
(collateral estoppel does not implicate court’s subject matter jurisdiction
and does not mandate dismissal of case).
7
At oral argument before this court, the plaintiff maintained that the
Superior Court ‘‘went beyond the issue of jurisdiction’’ in deciding the motion
to dismiss filed by the defendant.
8
To paraphrase the words of our Supreme Court, the filing by the plaintiff
of his renewed motion to admit the will into probate and the reasons articu-
lated therefor ‘‘did not and could not change the statutory issue as to the
validity of the will or relieve [him] of the burden of proving due execution’’
under § 45a-251. Crane v. Manchester, 143 Conn. 498, 501, 123 A.2d 752(1956).
9
The same judge, Hon. Marianne Lassman Fisher, presided over all rele-
vant Probate Court proceedings in this case.
10
In Miller, the court found that the decrees in question ‘‘were the result
of accident and mistake’’ because ‘‘[t]he probate proceedings were based
upon a mistaken belief that the deceased had left no will.’’ Miller v. McNa-
mara, supra, 135 Conn. 491–92. In that decision, our Supreme Court held
that the term ‘‘fraud,’’ as it was used in the precursor to § 45a-24, includes
‘‘fraud, mistake, or the like, which entered into [the] procurement’’ of the
disputed decree. Id., 495; accord Dunham v. Dunham, 204 Conn. 303, 328,
528 A.2d 1123 (1987) (Superior Court has power to grant relief against
probate judgments only if it concludes that probate decree attacked is void
on other grounds, Santopietro v. New Haven, 239 Conn. 207, 213 n.8, 682
A.2d 106 (1996). Unlike Miller, the will at issue in the present case was
submitted to the Probate Court at the outset of the probate proceedings.
The Probate Court reviewed that will and found it to be invalid.
11
It is undisputed that the will does not contain signatures from any
witnesses, nor does it specify the names and addresses of any such witnesses.
In a probate appeal before the Superior Court, ‘‘the proponent of a will has
the burden of proof on the statutory issues of due execution . . . .’’ Berkeley
v. Berkeley, 152 Conn. 398, 401, 207 A.2d 579 (1965). The signatures of
attesting witnesses are essential to the due execution of a will. Buck v.
Robinson, 128 Conn. 376, 380, 23 A.2d 157 (1941); see also Harchuck v.
Campana, 139 Conn. 549, 554, 95 A.2d 566 (1953) (writing ‘‘failed to meet
the requirements for the due execution of a will or codicil’’ because it lacked
signature of witness as required by statute).
12
The plaintiff’s complaint alleges in relevant part that the will substan-
tially complied with § 45a-251, as evidenced by the affidavits of the plaintiff,
Jennette Davis, and Byrd that were attached thereto. It nonetheless remains
that Connecticut does not recognize a substantial compliance exception.
Rather, our law requires strict compliance with the requirements of § 45a-
251. Gardner v. Balboni, supra, 218 Conn. 225. The plaintiff’s allegations of
substantial compliance are thus immaterial to a challenge to a Probate Court
decree under § 45a-24.
13
We note that the official commentary to that rule states in relevant part:
‘‘Among the defects in execution that can be excused, the lack of a signature
is the hardest to excuse.’’ 1 Restatement (Third), supra, § 3.3, comment (b),
p. 218.