Freese v. Dept. of Social Services

 KATHLEEN FREESE v. DEPARTMENT OF SOCIAL
SERVICES
(AC 38045)
GUSTAV CARIGLIO v. DEPARTMENT OF SOCIAL
SERVICES
(AC 38083)
DiPentima, C. J., and Mullins and Flynn, Js.
Syllabus
Pursuant to statute (§ 52-109), ‘‘[w]hen any action is commenced in the
name of the wrong person as plaintiff, the court may, if satisfied that
it was so commenced through mistake, and that it is necessary for the
determination of the real matter in dispute so to do, allow any other
person to be substituted or added as plaintiff.’’
The plaintiffs in both actions appealed to the trial court, pursuant to statute
(§ 4-183 [a]), from the decisions of the defendant Department of Social
Services denying the plaintiffs’ applications for certain Medicaid bene-
fits, which they had filed on behalf of their mothers, both of whom
died before the defendant rendered final decisions in the underlying
administrative proceedings. The trial court thereafter granted the defen-
dant’s motions to dismiss for lack of subject matter jurisdiction and
rendered judgments dismissing both appeals. Thereafter, the plaintiffs
filed separate appeals to this court, which consolidated the appeals.
The trial court had determined that because the plaintiffs’ decedents
died before they brought the appeals and because the plaintiffs did not
bring the appeals as executors or administrators of their decedents’
estates, the plaintiffs lacked standing. Moreover, although the plaintiffs
had been appointed as fiduciaries of their decedents’ estates after they
instituted the appeals and before the trial court ruled on the defendant’s
motions to dismiss, the trial court denied the plaintiffs’ requests to cure
the jurisdictional defects pursuant to the remedial statute, § 52-109,
by substituting themselves, in their capacities as estate fiduciaries, as
plaintiffs in the administrative appeals. Held:
1. The trial court properly concluded that the plaintiffs lacked standing
to appeal:
a. The plaintiffs’ claim that they had standing, pursuant to certain state
regulations (§ 17b-10-1), to assert their decedents’ rights in representa-
tive capacities lacked merit, as the plaintiffs’ standing to appeal derived
from § 4-183 (a), and the state regulations could not diminish the standing
requirements set forth in § 4-183 or a similar enabling statute (§ 17b-61
[b]), which do not confer standing to appeal to any party eligible to
request a fair hearing, as claimed by the plaintiffs; moreover, although
the plaintiffs cited § 17b-61 (b) as support for their claim that the person
who applied for the fair hearing may appeal from the decision to the
Superior Court, that statute provides that an individual who applies for
a fair hearing may appeal from that decision provided that he or she
also is aggrieved, and it does not diminish the standing requirements
set forth in § 4-183 (a) for filing administrative appeals.
b. The plaintiffs failed to plead facts establishing aggrievement, as the
operative complaints alleged that the defendant prejudiced the rights
of the plaintiffs’ decedents by improperly denying the applications, and
the plaintiffs thus failed to allege that they have any specific personal
and legal interests in the decisions to establish their aggrievement and
standing; moreover, the plaintiffs failed to allege facts establishing their
standing to appeal under the right of survival statute (§ 52-599), which
abrogates the common-law rule that causes of action do not survive the
death of a plaintiff, as neither plaintiff commenced their appeal as an
executor or administrator of their decedent’s estate, and § 52-599 (b) is
limited to executors or administrators and does not authorize actions
by parties such as next friends, putative administrators, or estate examin-
ers, and, therefore, the plaintiffs failed to plead sufficient facts to estab-
lish aggrievement.
2. The trial court improperly granted the defendants’ motions to dismiss
instead of giving the plaintiffs an opportunity to cure the jurisdictional
defect by substituting themselves, as fiduciaries of their decedents’
respective estates, as plaintiffs in the appeals: that court improperly
denied substitution and concluded that the plaintiffs’ administrative
appeals were not legally cognizable actions capable of being cured by
§ 52-109 or the right to survival statute (§ 52-599) because they were
commenced by parties without authorization to sue and, consequently,
were nullities, as the plaintiffs here lacked authority to bring the appeal
but did not lack the capacity to sue so as to render their administrative
appeals nullities, the mere fact that their action failed to confer jurisdic-
tion on the court did not preclude that jurisdictional defect from being
cured through substitution, and adding the plaintiffs here to correct a
mistake in ascertaining the real plaintiff in interest did not prejudice
the defendant because it was fully apprised of the claims against it
and was prepared to defend against them, and the alternative grounds
asserted by the defendant regarding why substitution was unavailable
were without merit; nevertheless, because the court did not determine
whether the failure of the plaintiffs to bring the actions in their capacities
as fiduciaries of their decedents’ estates was due to an error, misunder-
standing or misconception, which is a prerequisite for substitution under
§ 52-109, the cases were remanded for further proceedings to make such
findings and to determine whether substitution is necessary to determine
the real matter in dispute.
Argued January 30—officially released August 29, 2017
Procedural History
Appeals from the decisions by the defendant denying
the plaintiffs’ applications for certain benefits, brought
to the Superior Court in the judicial district of Middlesex
and transferred to the judicial district of New Britain;
thereafter, the matters were transferred to the judicial
district of Fairfield; subsequently, the court, Hon. How-
ard T. Owens, Jr., judge trial referee, granted the defen-
dant’s motions to dismiss and rendered judgments
thereon, from which the plaintiffs filed separate appeals
to this court; thereafter, this court consolidated the
appeals. Reversed; further proceedings.
Andrew S. Knott, with whom was Elizabeth A. Hol-
man, for the appellants (plaintiff in each case).
Patrick B. Kwanashie, assistant attorney general,
with whom, on the brief, was George Jepsen, attorney
general, for the appellee (defendant in both cases).
Opinion
FLYNN, J. Our Supreme Court has construed reme-
dial statutes liberally to give effect to their purpose.
See Dorry v. Garden, 313 Conn. 516, 533, 98 A.3d 55(2014). The plaintiffs, Kathleen Freese and Gustav Cari-
glio,1 appeal from judgments of the trial court dismiss-
ing their administrative appeals. The principal issue in
these cases is whether General Statutes § 52-109,2 a
remedial savings statute, could be utilized by the plain-
tiffs to save from dismissal their administrative appeals
commenced in the names of the wrong persons as
plaintiffs.
In these consolidated administrative appeals, the
defendant, the Department of Social Services, denied
applications for Medicaid benefits that the plaintiffs
filed on behalf of their respective mothers, Noreen
McCusker and Arlene Cariglio (Arlene), both of whom
died before the defendant rendered final decisions in
the underlying administrative proceedings. The plain-
tiffs appealed those denials to the trial court, but
because their decedents died before they brought the
appeals, and because they did not bring the appeals as
executors or administrators of their decedents’ estates,
the court determined that the plaintiffs lacked standing
and dismissed their appeals for lack of subject matter
jurisdiction. Furthermore, although the plaintiffs had
been appointed as fiduciaries of their decedents’ estates
after they instituted the appeals and before the court
ruled on the defendant’s motions to dismiss, the court
denied the plaintiffs’ requests to cure the jurisdictional
defect by substituting themselves, in their capacities
as estate fiduciaries, as plaintiffs in the administrative
appeals pursuant to the remedial savings statute § 52-
109 and the similarly worded rule of practice. See Prac-
tice Book § 9-20.
On appeal to this court, the plaintiffs claim that the
trial court (1) improperly concluded that they did not
have standing to bring their administrative appeals
because, despite the fact that they did not bring the
appeals as fiduciaries of their decedents’ estates, they
nonetheless had standing, pursuant to the regulations
set forth in the Uniform Policy Manual (UPM); Regs.,
Conn. State Agencies § 17b-10-1; to assert their dece-
dents’ rights in representative capacities, and (2)
improperly denied their requests for substitution
because, even if they did not have standing initially,
they were subsequently appointed as estate fiduciaries
and, thus, were entitled to cure the standing problem
pursuant to § 52-109 as applied by our Supreme Court
in Kortner v. Martise, 312 Conn. 1, 91 A.3d 412 (2014).
Although we agree with the court that the plaintiffs
initially lacked standing to commence their appeals in
representative capacities, we conclude that the court’s
stated justifications for denying the plaintiffs’ requests
for substitution of the fiduciaries of their decedents’
estates were legally incorrect. Because, however, the
court did not issue any findings as to whether the plain-
tiffs’ failure to name the proper parties in their adminis-
trative appeals was due to a mistake, as is required for
substitution to be available under § 52-109, we reverse
the court’s judgment and remand the case for further
proceedings not inconsistent with this opinion.
The facts and procedural history relevant to these
appeals are undisputed. Freese applied for Medicaid
benefits on behalf of her mother, Noreen McCusker, in
October, 2013. On April 27, 2014, before the defendant
ruled on the application, McCusker died. Thereafter,
the defendant denied Freese’s application because
McCusker’s assets exceeded the limit for eligibility for
Medicaid. Acting on her mother’s behalf, Freese
requested a fair hearing with the defendant’s Office of
Legal Counsel, Regulations and Administrative Hear-
ings. On September 26, 2014, after conducting the hear-
ing, the Office of Legal Counsel concurred that
McCusker’s assets rendered her ineligible for Medicaid
and denied Freese’s appeal. Contesting the merits of
that decision, Freese commenced an administrative
appeal to the trial court on October 29, 2014. In her
complaint, Freese alleged that McCusker’s rights were
prejudiced because the defendant improperly deprived
McCusker of her entitlement to Medicaid benefits.
Freese further alleged that she was aggrieved ‘‘by virtue
of being next friend and putative administrator for
[McCusker].’’ More than one month later, on December
11, 2014, Freese was appointed administratrix of
McCusker’s estate.
Cariglio’s action followed a similar procedural path.
Cariglio’s mother, Arlene, died on November 4, 2013.
Just over one week later, Cariglio applied for Medicaid
benefits on Arlene’s behalf. The defendant denied Carig-
lio’s application because Arlene had died and because
Arlene’s assets exceeded the eligibility limit. Cariglio
requested a fair hearing and, following the hearing, the
Office of Legal Counsel denied Cariglio’s appeal on
August 12, 2014. Cariglio commenced an administrative
appeal in the trial court on September 16, 2014, alleging,
in his operative complaint, that Arlene’s rights were
prejudiced by the defendant’s erroneous finding that
Arlene was ineligible for benefits. Cariglio further
alleged that he brought the appeal in his capacity as
Arlene’s ‘‘co-attorney-in-fact, next friend, and putative
coexecutor of [Arlene’s] will.’’3 With regard to
aggrievement, Cariglio alleged that he was aggrieved
as Arlene’s ‘‘estate examiner.’’4 Over a month later, on
December 3, 2014, Cariglio was appointed as a coexecu-
tor of Arlene’s estate.
Around the time when the plaintiffs were appointed
as fiduciaries of their decedents’ estates, the defendant
moved to dismiss the plaintiffs’ administrative appeals
for lack of subject matter jurisdiction. In both motions,
the defendant argued that the plaintiffs lacked standing
to appeal from the denials of their Medicaid applications
because they were not personally aggrieved by the deni-
als and, furthermore, did not institute the appeals as
administrators or executors of their decedents’ estates.
In response, the plaintiffs filed motions to substitute
themselves, in their newly-obtained capacities as fiduci-
aries of their respective decedents’ estates, as party
plaintiffs in order to cure any jurisdictional defects.
The plaintiffs both asserted that they commenced their
appeals ‘‘based on a good-faith belief, not being the
result of negligence,’’ that they were the proper parties
to appeal. The plaintiffs also requested leave to amend
their complaints to that effect.5 In their objections to
the defendant’s motions to dismiss, the plaintiffs argued
that, on the basis of Kortner v. Martise, supra, 312
Conn. 1, substitution of an estate fiduciary as a plaintiff
to cure a defect in standing is warranted under § 52-
109 where, as in their cases, the original action was
mistakenly brought in the name of an unauthorized
party. Alternatively, the plaintiffs argued that, pursuant
to the regulations set forth in the UPM, they had repre-
sentative standing to appeal on their decedents’
behalves despite the fact that, when they commenced
their appeals, they had not yet been appointed as fiduci-
aries of their decedents’ estates.
After hearing argument on May 12, 2015, and ordering
supplemental briefing, the court issued memoranda of
decision dismissing the plaintiffs’ appeals. With regard
to Freese, the court began by distinguishing her case
from our Supreme Court’s decision in Kortner v. Mar-
tise, supra, 312 Conn. 14, reasoning that, under Kortner,
‘‘substitution is permissible . . . only if the decedent
had a colorable claim of injury during his life that is a
real matter in dispute . . . such that the decedent had
standing to bring the action himself,’’ whereas
McCusker died before Freese commenced her adminis-
trative appeal and, therefore, ‘‘ha[d] neither a vindicable
right nor a colorable claim of injury that the action
implicates.’’ The court further observed that, because
Freese’s appeal was not commenced by an executor or
administrator of McCusker’s estate, it was incapable
of being cured by substitution: ‘‘Being a nullity and
incapable of vesting the court with subject matter juris-
diction over any controversy, a suit initiated by a dece-
dent or his heir, or by another on their behalf, cannot
be an action within the meaning of § 52-109, that section
contemplating a legally cognizable right of action. Fur-
ther, substitution under § 52-109 cannot retroactively
validate such a suit.’’6 Accordingly, the court determined
that Kortner was inapposite, declined to permit substi-
tution, and dismissed Freese’s appeal for lack of subject
matter jurisdiction. In denying substitution, the court
did not determine whether Freese’s failure to appeal
in her capacity as administratrix of McCusker’s estate
was the result of a mistake. See General Statutes § 52-
109 (substitution appropriate only if trial court is satis-
fied that original action was commenced in name of
improper party through mistake).
In its memorandum of decision dismissing Cariglio’s
appeal, the court reasoned that, to have standing to
appeal, Cariglio was required to commence the appeal
in his capacity as a fiduciary of Arlene’s estate, and
that Cariglio’s operative complaint failed to allege that
he brought his appeal in such a capacity. The court also
rejected Cariglio’s argument that his appeal could be
saved by § 52-109 or General Statutes § 52-599,7 reason-
ing that, because the appeal failed to invoke the court’s
jurisdiction in the first place, ‘‘there [was] no cause or
right of action to save.’’ Furthermore, the court con-
cluded that Cariglio failed to plead aggrievement, as is
required to have standing to appeal from an administra-
tive decision. See General Statutes § 4-183 (a). Thus,
the court declined to permit substitution and dismissed
Cariglio’s administrative appeal for lack of subject mat-
ter jurisdiction.8 As in Freese’s case, the court did not
determine whether Cariglio failed to appeal as coexecu-
tor of Arlene’s estate due to a mistake. These consoli-
dated appeals followed.
The plaintiffs claim that court improperly granted
the defendant’s motions to dismiss for lack of subject
matter jurisdiction. First, they argue that the court erro-
neously concluded that they lacked standing to appeal
because, pursuant to the regulations set forth in the
UPM, they had standing to appeal in representative
capacities. Second, the plaintiffs contend that, on the
basis of § 52-109 and Kortner v. Martise, supra, 312
Conn. 1, the court erred in refusing to permit substitu-
tion in lieu of dismissing the cases.9 As set forth subse-
quently in this opinion, we disagree with the plaintiffs’
claim that they had standing to appeal in capacities
other than as fiduciaries of their respective decedents’
estates. However, we reverse the judgments of dis-
missal and remand the cases for the court to determine
whether the plaintiffs’ failure to name the proper parties
as plaintiffs in their appeals was due to a mistake and
for such further proceedings as are not inconsistent
with this opinion.
We begin by setting forth our standard of review. ‘‘A
determination regarding a trial court’s subject matter
jurisdiction is a question of law. . . . When the trial
court draws conclusions of law, appellate review is
plenary, and the reviewing court must decide whether
the trial court’s conclusions are legally and logically
correct.’’ (Internal quotation marks omitted.) Young-
man v. Schiavone, 157 Conn. App. 55, 63, 115 A.3d 516(2015). Furthermore, ‘‘[t]he decision whether to grant
a motion for the addition or substitution of a party to
legal proceedings rests in the sound discretion of the
trial court.’’ (Internal quotation marks omitted.) Id.‘‘[When] a motion to dismiss is filed on the ground that
the plaintiff lacks standing, and the plaintiff quickly
follows by filing a motion to substitute the correct party,
the motion to substitute may be heard while the motion
to dismiss is pending, notwithstanding the general rule
that the subject matter jurisdictional issues raised by
a motion to dismiss must be dealt with prior to other
motions.’’ (Internal quotation marks omitted.) Id.I
The plaintiffs first argue that the court erroneously
concluded that they lacked standing to appeal from
the defendant’s denials of their Medicaid applications
because the UPM conferred them with standing to
assert their decedents’ rights in representative capaci-
ties. We disagree.
‘‘It is well established that the right to appeal an
administrative action is created only by statute and a
party must exercise that right in accordance with the
statute in order for the court to have jurisdiction.’’ New
England Rehabilitation Hospital of Hartford, Inc. v.
Commission on Hospitals & Health Care, 226 Conn.
105, 120, 627 A.2d 1257 (1993). In the present cases,
the plaintiffs appealed pursuant to § 4-183 (a), which
provides in relevant part that ‘‘[a] person who has
exhausted all administrative remedies available within
the agency and who is aggrieved by a final decision
may appeal to the Superior Court as provided in this
section.’’ See also General Statutes § 17b-61 (b) (provid-
ing that ‘‘[t]he applicant for [a fair] hearing, if aggrieved,
may appeal therefrom in accordance with section 4-
183’’).
Therefore, ‘‘in order to have standing to bring an
administrative appeal, a person or entity must be
aggrieved. . . . Aggrievement is a question of fact for
the trial court and the plaintiff has the burden of proving
that fact. . . . Pleading and proof of facts that consti-
tute aggrievement are essential prerequisites to the trial
court’s subject matter jurisdiction over an administra-
tive appeal. . . . In the absence of aggrievement, an
administrative appeal must be dismissed for lack of
subject matter jurisdiction.’’ (Citations omitted.) New
England Rehabilitation Hospital of Hartford, Inc. v.
Commission on Hospitals & Health Care, supra, 226
Conn. 120–21.
‘‘[T]he fundamental test for determining
aggrievement encompasses a well-settled twofold
determination: first, the party claiming aggrievement
must successfully demonstrate a specific personal and
legal interest in the subject matter of the decision, 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 success-
fully establish that this specific personal and legal inter-
est has been specially and injuriously affected by the
decision . . . .’’ (Internal quotation marks omitted.)
New England Cable Television Assn., Inc. v. Dept. of
Public Utility Control, 247 Conn. 95, 103, 717 A.2d
1276 (1998).
Before reaching the question of aggrievement under
§ 4-183 (a), we reject the plaintiffs’ central contention
that the UPM conferred them with standing to com-
mence their administrative appeals in representative
capacities. In essence, the plaintiffs’ argument is that
they need not establish aggrievement under § 4-183 (a)
provided that they had standing under the UPM. It is
well settled, however, that ‘‘[a]ppeals to the courts from
administrative [agencies] exist only under statutory
authority . . . . Appellate jurisdiction is derived from
the . . . statutory provisions by which it is created
. . . and can be acquired and exercised only in the
manner prescribed. . . . In the absence of statutory
authority, therefore, there is no right of appeal from
[an agency’s] decision . . . .’’ (Internal quotation
marks omitted.) Cales v. Office of Victim Services, 319
Conn. 697, 700–701, 127 A.3d 154 (2015). Therefore,
the plaintiffs’ standing to appeal from the defendant’s
denials of their Medicaid applications is derived solely
from §§ 4-183 (a) and 17b-61 (b), and unless the plain-
tiffs established the prerequisites to standing as
required by those sections, namely, aggrievement, their
appeals are subject to dismissal. The regulations set
forth in the UPM, promulgated by the defendant pursu-
ant to General Statutes § 17b-10 (a), cannot diminish the
standing requirements set forth in the enabling statutes.
Indeed, the plaintiffs’ contention is that, under the UPM,
any party eligible to request a fair hearing also has
standing to appeal to the trial court. The enabling stat-
utes, however, do not confer standing under such cir-
cumstances. ‘‘[M]ere status . . . as a party or a
participant in a hearing before an administrative agency
does not in and of itself constitute aggrievement for
the purposes of appellate review.’’ (Internal quotation
marks omitted.) Med-Trans of Connecticut, Inc. v.
Dept. of Public Health & Addiction Services, 242 Conn.
152, 169, 699 A.2d 142 (1997). Because the plaintiffs’
claim that the UPM conferred them with standing would
require us to depart from the enabling statutes, their
reliance on the UPM is without merit.
The plaintiffs do, however, cite one of the enabling
statutes—§ 17b-61 (b)—as support for their argument
that ‘‘the person who applied for the [f]air [h]earing
may appeal the decision to the Superior Court.’’ Section
17b-61 (b), which governs standing to appeal from deci-
sions rendered after administrative hearings, provides
in relevant part: ‘‘The applicant for such a hearing, if
aggrieved, may appeal therefrom in accordance with
section 4-183. . . .’’ (Emphasis added.) Contrary to the
plaintiffs’ interpretation, the plain text of that statute
provides that an individual who applies for a fair hearing
may appeal from that decision provided that he or she
also is aggrieved. The plaintiffs’ construction ignores
the phrase ‘‘if aggrieved,’’ in violation of the principle
that statutes ‘‘must be construed, if possible, such that
no clause, sentence or word shall be superfluous, void
or insignificant . . . .’’ (Internal quotation marks omit-
ted.) Marchesi v. Board of Selectmen, 309 Conn. 608,
615, 72 A.3d 394 (2013). Therefore, § 17b-61 (b) does
not diminish the standing requirements set forth in § 4-
183 (a) for filing administrative appeals, and does not
help the plaintiffs’ cause.
Having rejected the plaintiffs’ primary argument on
appeal, namely, that the UPM could confer them with
authority to appeal to the Superior Court, we next con-
clude that the plaintiffs failed to plead facts establishing
aggrievement.10 In their operative complaints, the plain-
tiffs allege that they applied for Medicaid benefits on
behalf of their decedents, and that the defendant preju-
diced their decedents’ rights by improperly denying the
applications. Therefore, despite the plaintiffs’ alleged
participation in the underlying proceedings and dis-
agreement with the merits of the administrative deci-
sions, they have failed to allege that they have any
specific personal and legal interests in the decisions.
See New England Cable Television Assn., Inc. v. Dept.
of Public Utility Control, supra, 247 Conn. 103. On that
basis, the plaintiffs were not aggrieved and, thus, lacked
standing to commence these appeals.
Nor did the plaintiffs allege facts establishing their
standing to appeal under our right of survival statute,
§ 52-599, which abrogates the common law rule that
causes of action do not survive the death of a plaintiff.
See Burton v. Browd, 258 Conn. 566, 570–71, 783 A.2d
457 (2001). Under § 52-599, causes of action survive the
death of a plaintiff, but only in favor of the plaintiff’s
‘‘executor or administrator . . . .’’ See General Stat-
utes § 52-599 (b).11 ‘‘It is a well established principle
. . . that [d]uring the interval . . . between the death
and the revival of the action [pursuant to § 52-599] by
the appearance of the executor or administrator, the
cause has no vitality. The surviving party and the court
alike are powerless to proceed with it.’’ (Internal quota-
tion marks omitted.) Burton v. Browd, supra, 571. Lim-
iting § 52-599 to suits brought by the decedent’s
executor or administrator accords with the established
principle that ‘‘[t]he proper suit, upon a cause of action
arising in favor of . . . the decedent during [his or her]
lifetime, is in the name of the fiduciary [of the estate]
rather than of the heirs or other beneficiaries of the
estate.’’ (Internal quotation marks omitted.) Geremia
v. Geremia, 159 Conn. App. 751, 781, 125 A.3d 549(2015); see also 31 Am. Jur. 2d 746, Executors and
Administrators § 1093 (2012) (‘‘the exclusive right to
bring action in behalf of an estate . . . is the legal
representative of the estate; the heirs have no standing
to maintain such an action’’ [footnote omitted]).
In the present case, neither plaintiff commenced their
appeal as an executor or administrator of their dece-
dent’s estate; indeed, it is undisputed that they were
not appointed into those capacities until December,
2014, after they instituted the appeals. Instead, Freese
alleged that she was aggrieved as McCusker’s ‘‘next
friend and putative administrator,’’ and Cariglio alleged
that he was aggrieved as Arlene’s ‘‘estate examiner.’’
Because § 52-599 limits its ambit to executors or admin-
istrators, it does not authorize suits by parties such as
next friends, putative administrators, or estate examin-
ers. Accordingly, the plaintiffs failed to plead sufficient
facts to establish aggrievement, and the court properly
concluded that they lacked standing to appeal.12
We nonetheless find it appropriate to note that, in
terms of whether a party authorized to participate in
the administrative proceedings also is authorized to
bring an administrative appeal, certain regulations in
the UPM leave some room for confusion. For instance,
§ 1505.15 (A) (1) of the UPM permits applicants to be
‘‘represented by other qualified individuals who act
responsibly for them,’’ and § 1570.05 (D) (2) (b) pro-
vides that, in the case of a deceased applicant, their
child may request a fair hearing on their behalf. Finally,
§ 1570.30 (A) of the UPM provides that ‘‘[t]he requester
has the right to appeal a [f]air [h]earing decision to the
court of jurisdiction.’’ Taken together, we can see how
litigants might be misled into thinking that they are
authorized to file administrative appeals from fair hear-
ing decisions simply because they were the person to
request the fair hearing. Fair hearing applicants who
mistakenly rely on these provisions of the UPM as con-
ferring them with standing may be induced into failing
to take the necessary measures to establish
aggrievement under § 4-183, such as obtaining appoint-
ment as fiduciary of their decedent’s estate, which could
harm their ability to assert the rights of their decedents
in administrative appeals. It would be prudent for the
defendant to amend the relevant regulations of the UPM
to provide a clear indication that none of them dimin-
ishes the aggrievement requirements set forth in § 4-183.
Regardless of their lack of clarity, however, the UPM
regulations cannot, as we have stated, enlarge the class
of persons eligible to file an administrative appeal
beyond those qualifying as aggrieved persons under § 4-
183 (a). See Cales v. Office of Victim Services, supra,
319 Conn. 700–701. Because the plaintiffs failed to allege
that they were aggrieved, they lacked standing to
appeal.
II
Having determined that the plaintiffs failed to plead
sufficient facts to establish that they had standing to
commence their administrative appeals, we must next
determine whether the court erred by granting the
defendant’s motions to dismiss instead of giving the
plaintiffs an opportunity to cure the jurisdictional defect
by substituting themselves, as fiduciaries of their dece-
dents’ respective estates, as plaintiffs in the appeals.
We conclude that the court’s stated justifications for
denying substitution are legally incorrect, and that the
alternative grounds asserted by the defendant regarding
why substitution was unavailable are without merit.
Because, however, the court did not determine whether
the plaintiffs’ failure to sue in their capacities as fiduci-
aries of their decedents’ estates was due to a mistake,
which is a prerequisite for substitution under § 52-109,
we remand the case for a further finding and for further
proceedings not inconsistent with this opinion.
‘‘The decision whether to grant a motion for the addi-
tion or substitution of a party to legal proceedings rests
in the sound discretion of the trial court. . . . In
reviewing the trial court’s exercise of that discretion,
every reasonable presumption should be indulged in
favor of its correctness . . . and only if its action dis-
closes a clear abuse of discretion is our interference
warranted.’’ (Internal quotation marks omitted.) Young-
man v. Schiavone, supra, 157 Conn. App. 65.
Section 52-109 provides: ‘‘When any action has been
commenced in the name of the wrong person as plain-
tiff, the court may, if satisfied that it was so commenced
through mistake, and that it is necessary for the determi-
nation of the real matter in dispute so to do, allow any
other person to be substituted or added as plaintiff.’’
Section 52-109 ‘‘allow[s] a substituted plaintiff to enter
a case [w]hen any action has been commenced in the
name of the wrong person as [the] plaintiff, and that
such a substitution will relate back to and correct, retro-
actively, any defect in a prior pleading concerning the
identity of the real party in interest. . . . Thus, a substi-
tution of a real party in interest as the plaintiff cures
the lack of standing of the original plaintiff . . . and,
further, is permissible even after the statute of limita-
tions has run. . . . An addition or substitution is discre-
tionary, but generally should be allowed when, due
to an error, misunderstanding or misconception,13 an
action was commenced in the name of the wrong party,
instead of the real party in interest, whose presence is
required for a determination of the matter in dispute.’’
(Citations omitted; footnotes altered; internal quotation
marks omitted.) Fairfield Merrittview Ltd. Partner-
ship v. Norwalk, 320 Conn. 535, 552–53, 133 A.3d 140(2016).
Once the trial court determines that the action was
commenced in the name of the wrong party due to an
error, misunderstanding or misconception, ‘‘the substi-
tuted party is let in to carry on a pending suit, and is
not regarded as commencing a new one. After he is
substituted he is . . . treated and regarded for most
purposes just as if he had commenced the suit origi-
nally. The writ, the complaint, the service of process,
attachment made, bonds given, the entry of the case in
court, the pleadings if need be, in short all things done
in the case by or in favor of the original plaintiff . . .
remain for the benefit of the plaintiff who succeeds
him, as if done by and for him originally and just as if
no change of parties had been made. So far as the
defendant is concerned, the same suit upon the same
cause of action, under the same complaint and plead-
ings substantially in most cases, goes forward to its
final and legitimate conclusion as if no change had been
made.’’ (Internal quotation marks omitted.) Kortner v.
Martise, supra, 312 Conn. 12–13. ‘‘[W]hen a plaintiff is
added to the case to correct a mistake in ascertaining
the real plaintiff in interest, the defendant rarely, if ever,
will be prejudiced, as long as he was fully apprised of
the claims against him and was prepared to defend
against them.’’ DiLieto v. County Obstetrics & Gynecol-
ogy Group, P.C., 297 Conn. 105, 158, 998 A.2d 730 (2010).
Finally, we must bear in mind that ‘‘remedial statutes
must be afforded a liberal construction in favor of those
whom the legislature intended to benefit.’’ (Internal
quotation marks omitted.) Dorry v. Garden, supra, 313
Conn. 533. Our rules with respect to substitution are
no different—they ‘‘permit the substitution of parties
as the interest of justice require’’; (internal quotation
marks omitted) Kortner v. Martise, supra, 312 Conn.
11; and ‘‘are to be construed so as to alter the harsh
and inefficient result that attached to the mispleading
of parties at common law.’’ (Internal quotation marks
omitted.) Id.In the present cases, the trial court did not determine
whether the plaintiffs’ failure to name the proper parties
in their appeals was due to a mistake. Instead, the trial
court’s principal reason for denying substitution
appears to have been that the plaintiffs’ administrative
appeals were not legally cognizable actions capable of
being cured by § 52-109 or our right of survival statute,
§ 52-599 (b), because they were commenced by parties
without authorization to sue and, consequently, were
nullities. In its memorandum of decision dismissing
Freese’s case, the court stated that, ‘‘[b]eing a nullity
and incapable of vesting the court with subject matter
jurisdiction over any controversy, a suit initiated by a
decedent or his heir, or by another on their behalf,
cannot be an action within the meaning of § 52-109,
that section contemplating a legally cognizable right
of action. Further, substitution under § 52-109 cannot
retroactively validate such a suit.’’ Likewise, with regard
to Cariglio, the court observed that, although ‘‘§ 52-109
permit[s] substitution of a proper party for the plaintiff
in any action mistakenly commenced in the name of
the wrong person and § 52-599 (b) permits a civil action
or proceeding by or against any party who dies during
the pendency of the action to be continued by or against
the decedent’s executor or administrator, neither stat-
ute can save an unauthorized suit, there being no cause
or right of action to save.’’
This reasoning is flawed on two levels. First, although
the plaintiffs lacked authority to bring these appeals
on their decedents’ behalves, they did not, as the trial
court suggested, lack the capacity to sue so as to render
their administrative appeals nullities. ‘‘It is elemental
that in order to confer jurisdiction on the court the
plaintiff must have an actual legal existence, that is he
or it must be a person in law or a legal entity with legal
capacity to sue.’’ (Internal quotation marks omitted.)
Coldwell Banker Manning Realty, Inc. v. Cushman &
Wakefield of Connecticut, Inc., 136 Conn. App. 683, 687,
47 A.3d 294 (2012). For instance, ‘‘[t]he quintessential
example of someone who lacks capacity to sue . . . is
a deceased person, as capacity only exists in living
persons.’’ In re Estate of Sauers, 613 Pa. 186, 198, 32
A.3d 1241 (2011); see also Noble v. Corkin, 45 Conn.
Supp. 330, 333, 717 A.2d 301 (1998) (‘‘[a] dead person
is a nonexistent entity and cannot be a party to a suit’’
[internal quotation marks omitted]). Likewise, ‘‘[a]n
estate is not a legal entity. It is neither a natural nor
artificial person, but is merely a name to indicate the
sum total of the assets and liability of the decedent or
incompetent. . . . Not having a legal existence, it can
neither sue nor be sued.’’ (Citation omitted; internal
quotation marks omitted.) Isaac v. Mount Sinai Hospi-
tal, 3 Conn. App. 598, 600, 490 A.2d 1024, cert. denied,
196 Conn. 807, 494 A.2d 904 (1985). In the present cases,
however, the plaintiffs did not commence their appeals
in the names of their decedents or their decedents’
estates; rather, they sued in their own names. Although
the plaintiffs were not authorized, and thus lacked
standing, to appeal in their own names, they were none-
theless living persons with capacity to sue. See 67A
C.J.S. 524–25, Parties § 10 (2013) (‘‘[i]n general, every
natural person of lawful age has legal capacity to sue’’).
Accordingly, the trial court was incorrect to posit that
the plaintiffs’ appeals were nullities.
Second, even if the plaintiffs’ appeals were nullities,
the mere fact that an action fails to confer jurisdiction
on the court does not preclude that jurisdictional defect
from being cured through substitution. ‘‘[I]f § 52-109
is to have the ameliorative purpose for which it was
intended, then even assuming that the specter of subject
matter jurisdiction rears its head, the statute is meant
to give the trial courts jurisdiction for the limited pur-
pose of determining if the action should be saved from
dismissal by the substitution of plaintiffs. . . . The leg-
islature’s provision of this statutory remedy would be
completely undermined by any rule requiring the imme-
diate dismissal for lack of subject-matter jurisdiction
of any action commenced in the name of the wrong
person as plaintiff. The statute, as an exercise of the
legislature’s constitutional authority to determine [our
court’s] jurisdiction . . . must be seen as an extension
of that jurisdiction for the limited purpose of deciding
a proper motion to substitute.’’ (Citations omitted; inter-
nal quotation marks omitted.) Youngman v. Schiavone,
supra, 157 Conn. App. 64.
Put simply, substitution is available to cure lawsuits
that, like the present cases, were commenced by unau-
thorized parties. Our Supreme Court recognized this in
Kortner v. Martise, supra, 312 Conn. 1, in which the
plaintiff, in her capacity as conservator of Caroline Kor-
tner’s person, commenced a tort action against the
defendant, asserting that the defendant committed a
variety of torts against Kortner. Id., 8. Kortner died after
the action was commenced, the plaintiff was appointed
administratrix of her estate, and the trial court granted
the plaintiff’s motion to substitute herself as administra-
trix as the plaintiff in the action. Id., 11. On appeal, the
Supreme Court sua sponte ordered the parties to brief
the issue of whether the plaintiff lacked standing to sue
as conservator of Kortner’s person. Id., 9 and n.7. The
court concluded that, ‘‘even assuming, arguendo, that
the plaintiff did not have standing to bring the claim
when she commenced the action . . . any defect was
cured when she, as administratrix of [Kortner’s] estate,
was substituted as the plaintiff . . . and that substitu-
tion related back to the commencement of the action.’’
Id., 14. By permitting substitution to cure the alleged
jurisdictional defect, the court implicitly recognized in
Kortner that substitution under § 52-109 is not categori-
cally unavailable to cure lawsuits commenced by unau-
thorized parties.
We also do not agree with the trial court’s reasoning in
its memorandum of decision dismissing Freese’s appeal
that substitution would prejudice the defendant
because it would permit Freese to avoid the forty-five
day limitation period for filing administrative appeals.
Our case law recognizes that ‘‘[w]hen a plaintiff is added
to the case to correct a mistake in ascertaining the real
plaintiff in interest, the defendant rarely, if ever, will
be prejudiced, as long as he was fully apprised of the
claims against him and was prepared to defend against
them.’’ DiLieto v. County Obstetrics & Gynecology
Group, P.C., supra, 297 Conn. 158. Additionally, ‘‘substi-
tution of a real party in interest as the plaintiff cures
the lack of standing of the original plaintiff . . . and,
further, is permissible even after the statute of limita-
tions has run.’’ (Citation omitted; internal quotation
marks omitted.) Fairfield Merrittview Ltd. Partner-
ship v. Norwalk, supra, 320 Conn. 553. Here, Freese
brought her administrative appeal on October 29, 2014,
within the forty-five day limitation period, and her
pleadings fully apprised the defendant of the claims she
was raising. Thus, it is difficult to discern the way in
which the defendant would be prejudiced by substi-
tution.
The defendant advances additional arguments as to
why substitution was unavailable. The defendant argues
that administrative appeals are not ‘‘actions’’ eligible to
be cured under the provisions of § 52-109, and that there
was not a sufficient identity of interest between the
originally named plaintiffs and the plaintiffs in their
capacities as estate fiduciaries. Moreover, the defen-
dant argues that, in light of Kortner v. Martise, supra,
312 Conn. 14, substitution was unavailable in the plain-
tiffs’ cases because the plaintiffs’ decedents were
deceased by the time the defendant issued appealable
administrative decisions and, therefore, did not have
standing in their own right to bring the appeals.
We turn first to the defendant’s argument that the
plaintiffs’ administrative appeals are not ‘‘actions’’ for
purposes of § 52-109. That section provides: ‘‘When any
action has been commenced in the name of the wrong
person as plaintiff, the court may, if satisfied that it
was so commenced through mistake, and that it is nec-
essary for the determination of the real matter in dispute
so to do, allow any other person to be substituted or
added as plaintiff.’’ (Emphasis added.) Section 52-109
thus requires that, in order to fall within the statute’s
saving grace, a case must be an ‘‘action.’’ As support for
its argument, the defendant cites to Carbone v. Zoning
Board of Appeals, 126 Conn. 602, 13 A.2d 462 (1940),
Bank Building & Equipment Corp. of America v.
Architectural Examining Board, 153 Conn. 121, 214
A.2d 377 (1965), and Chieppo v. Robert E. McMichael,
Inc., 169 Conn. 646, 363 A.2d 1085 (1975), none of which
deal with § 52-109 at issue here.
In Carbone v. Zoning Board of Appeals, supra, 126
Conn. 602, writing for our Supreme Court, Justice Malt-
bie, with logic and brevity worthy of Tacitus, observed
that, as used in our General Statutes, ‘‘the word ‘action’
has no precise meaning and the scope of proceedings
which will be included within the term as used in the
statutes depends upon the nature and purpose of the
particular statute in question.’’ Id., 605. In deciding that
an appeal from a zoning board was not an ‘‘action’’
for purposes of the accidental failure of suit statute,
General Statutes § 52-592 (then codified as General Stat-
utes [1930 Rev.] § 6024), the court held that statutory
actions and special laws that fix a rather brief time in
which appeals may be taken to the courts from the
order and decisions of administrative boards, and that
make it possible to proceed in the matter as soon as
the time to take an appeal has passed if one has not
been filed, were unsuited to be considered ‘‘actions’’
that could be saved under the one year recommence-
ment provision of the accidental failure of suit statute.
Id., 607. The court stated that ‘‘[t]o hold that an appeal
in such a proceeding as the one before us is an ‘action’
within the meaning of [the accidental failure of suit
statute] would have the practical effect of eliminating
the time factor in taking such appeals.’’ Id.
We see important distinctions between the present
cases and Carbone. The Carbone court wisely ruled
that a fifteen day appeal period could not be extended
to one year under the accidental failure of suit statute
because the short fifteen day appeal period had been
established by the legislature, rather than rule of the
court, so that persons who might have received an
approval of a zoning application could proceed with a
project and so that public officials charged with issuing
permits could issue them knowing that no appeal had
been taken in the fifteen day period permitted. We see
no such imperative here. Under § 4-183, the appeal stat-
ute in the present cases, the appeal period is forty-five
days, three times longer than the time within which
zoning appeals must be taken.14 Unlike Carbone, there
is no similar need to ‘‘proceed in the matter as soon as
the time to take an appeal has passed if one has not
been filed.’’ Carbone v. Zoning Board of Appeals, supra,126 Conn. 607. Moreover, unlike Carbone, the remedial
statute involved here is § 52-109.
In Bank Building & Equipment Corp. of America v.
Architectural Examining Board, supra, 153 Conn. 121,
also relied upon by the defendant, the statute involved
was General Statutes (Cum. Supp. 1965) § 20-289, which
governed appeals from orders of the Architectural
Examining Board and provided that such appeals must
be taken within thirty days of the date of an order.
Id., 123. Rejecting the plaintiffs’ request to overrule
Carbone, the court determined that an appeal under
§ 20-289 was not an ‘‘action’’ for purposes of the acci-
dental failure of suit statute, § 52-592, or a ‘‘civil action’’
under General Statutes § 52-593, which provides that a
plaintiff in ‘‘any civil action’’ who fails to obtain a judg-
ment by reason of failure to name the right person as
defendant may bring a new action even if the statute
of limitations had expired. Id., 124. In reaching this
conclusion, the court found it ‘‘significant that § 20-
289, in authorizing appeals from the defendant board,
requires that the citation be ‘signed by the same author-
ity’ and that the appeal be ‘returnable at the same time
and served and returned in the same manner as is
required in the case of a summons in a civil action.’
. . . The steps prescribed in § 20-289 are easily under-
stood. It is apparent from the language used that the
General Assembly intended to set forth a procedure
distinct from the ordinary concept of a civil action.’’15
(Citation omitted.) Id., 125. By contrast, § 4-183 does
not set forth any procedure distinct from the procedure
used to bring an ordinary civil action.16
The defendant also argues that Chieppo v. Robert E.
McMichael, Inc., supra, 169 Conn. 646, supports the
proposition that the present administrative appeals are
not actions under § 52-109. Chieppo, however, also has
factual distinctions from the present cases. Chieppo
dealt with a workers’ compensation appeal pursuant to
General Statutes (Rev. to 1975) § 31-301 (a), which, at
that time, provided for a very limited ten day appeal
period within which it might be brought. An employer
whose appeal had been dismissed because it had been
brought in the wrong court sought to transfer the matter
to the proper court pursuant to General Statutes (Rev.
to 1975) § 52-32. Id., 648–49. Because the purpose of
the workers’ compensation act was to provide a prompt,
effective means of compensating injured workers for
related expenses, it was not deemed a ‘‘civil action’’ for
purposes of § 52-32. Id., 653–54. Given the much shorter
ten day window for filing an appeal in Chieppo, and
the obvious legislative purpose of the workers’ compen-
sation statutes to ensure that injured workers were
provided with a prompt remedy in lieu of their right to
sue their employer or negligent fellow worker, the rul-
ing that such appeals are not ordinary civil actions
was consistent with the framework that Chief Justice
Maltbie’s opinion in Carbone v. Zoning Board of
Appeals, supra, 126 Conn. 602, used to decide whether
a particular case was a civil action eligible to be saved
by a remedial statute, namely, analysis of the nature
and purpose of the particular statute in question.
For these reasons, we do not find Carbone, Bank
Building & Equipment Corp. of America or Chieppo
persuasive for purposes of determining whether admin-
istrative appeals under § 4-183 are ‘‘actions’’ that are
salvageable under § 52-109. We conclude that substitu-
tion is available under § 52-109 to cure an administrative
appeal commenced in the name of an improper party
due to a mistake.17
The defendant also claims that substitution was
unavailable because there is an insufficient identity of
interest between the plaintiffs in their purported capaci-
ties as next of friend, putative administrator, and estate
examiner, and the plaintiffs in their capacities as fiduci-
aries of their decedents’ estates. The defendant grounds
this argument in the assertion that, ‘‘whereas the plain-
tiffs claim to represent the decedents’ interest, the
estate fiduciaries represent the decedents’ creditors’
interest, and, though related, the two sets of interests
do not coincide.’’ We disagree. The pleadings in the
present cases do not reflect that the plaintiffs, as estate
fiduciaries, represent the interests of the decedents’
creditors rather than the decedents’ interests. To the
contrary, the plaintiffs filed proposed amended com-
plaints in conjunction with their requests for substitu-
tion in which they both alleged that the rights of their
decedents were prejudiced by the defendant’s errone-
ous denials of their Medicaid applications. Thus,
whether suing in the unauthorized capacities of next
of friend, putative administrator or estate examiner,
or in their proper capacities as estate fiduciaries, the
plaintiffs sought the very same thing—to vindicate their
decedents’ rights to Medicaid benefits. Accordingly,
there is no identity of interest impediment to substi-
tution.
Finally, we do not agree with the defendant’s reading
of Kortner as holding that, for substitution to be appro-
priate, the decedent must have been alive at the time
the original action was commenced. The defendant
relies on the specific language from Kortner in which
our Supreme Court cautioned that its decision that sub-
stitution was available was ‘‘not meant to suggest that
any person who is appointed an administrator of an
estate becomes a proper party to any claim. As § 52-
109 requires, the substitution of an administrator of an
estate ‘is necessary for the determination of the real
matter in dispute . . . .’ In the present case, it is clear
that [Kortner] herself had a colorable claim of injury,
therefore, the substitution of the plaintiff, as admin-
istratrix of the estate, cured any possible jurisdic-
tional defect.’’ (Emphasis added.) Kortner v. Martise,
supra, 312 Conn. 14. We do not read this portion of
Kortner as categorically barring substitution under
§ 52-109 in every situation in which the decedent prede-
ceases the commencement of the original action.
Rather, the court merely was observing that the dece-
dent in Kortner had standing by virtue of the fact that
she suffered a personal, particularized injury. Similarly,
the decedents in the present cases suffered personal
legal injuries as a result of the defendant’s denials of
their Medicaid applications. The defendant’s reading
of Kortner would effectively undermine the remedial
purpose of § 52-109.
Because the trial court did not issue findings as to
the prerequisites for substitution under § 52-109, we
conclude, consistent with Allied Associates v. Q-Tran,
Inc., 165 Conn. App. 239, 245, 138 A.3d 1104 (2016),
that the judgment of dismissal must be reversed and
the case remanded to the trial court for further findings.
Specifically, the court must determine, in each plain-
tiff’s case, whether (1) the plaintiff’s failure to name
the estate fiduciaries as plaintiffs was the result of a
mistake, that is, an error, misunderstanding or miscon-
ception, and (2) whether substitution is necessary to
determine the real matter in dispute. See General Stat-
utes § 52-109.
The judgments are reversed and the cases are
remanded for further proceedings consistent with
this opinion.
In this opinion the other judges concurred.
1
We refer to Freese and Cariglio collectively as the plaintiffs throughout
this opinion, distinguishing between them only where necessary to avoid con-
fusion.
2
General Statutes § 52-109 provides: ‘‘When any action has been com-
menced in the name of the wrong person as plaintiff, the court may, if
satisfied that it was so commenced through mistake, and that it is necessary
for the determination of the real matter in dispute so to do, allow any other
person to be substituted or added as plaintiff.’’
3
Cariglio alleged that Arlene left a will that designated him and his brother
Pasquale Cariglio ‘‘as coexecutors,’’ and that the will was ‘‘in the process’’
of being admitted into probate.
4
Cariglio’s reference to his status as ‘‘estate examiner’’ appears to be a
reference to General Statutes § 45a-317a, which provides in relevant part:
‘‘Any person interested in the estate of a deceased person and having a
need to obtain financial information concerning the deceased person for
the limited purpose of determining whether the estate may be settled as a
small estate under section 45a-273, or having a need to obtain financial or
medical information concerning the deceased person for the limited purpose
of investigating a potential cause of action of the estate, surviving spouse,
children, heirs or other dependents of the deceased person, or a potential
claim for benefits under a workers’ compensation act, an insurance policy
or other benefits in favor of the estate, surviving spouse, children, heirs or
other dependents of the deceased person, may apply to the Probate Court
having jurisdiction of the estate of the deceased person for the appointment
of an estate examiner. . . . If the court appoints an estate examiner under
this section, the court may require a probate bond or may waive such bond
requirement. The court shall limit the authority of the estate examiner to
disclose the information obtained by the estate examiner, as appropriate,
and may issue an appropriate order for the disclosure of such information.
Any order appointing an estate examiner under this section, and any certifi-
cate of the appointment of a fiduciary issued by the clerk of the court, shall
indicate (1) the duration of the estate examiner’s appointment, and (2) that
such estate examiner has no authority over the assets of the deceased
person.’’
5
Freese’s proposed amended complaint alleged that she was aggrieved ‘‘by
virtue of being administratrix of estate for [McCusker].’’ Cariglio’s proposed
second amended complaint alleged that he and Pasquale Cariglio were
aggrieved ‘‘by virtue of being the coexecutors of estate for [Arlene].’’
6
The court further reasoned that permitting substitution in Freese’s action
would prejudice the defendant because it would permit Freese to avoid the
forty-five day limitation period for filing administrative appeals. See General
Statutes § 4-183 (c).
7
General Statutes § 52-599 provides in relevant part: ‘‘(a) A cause or right
of action shall not be lost or destroyed by the death of any person, but
shall survive in favor of or against the executor or administrator of the
deceased person.
‘‘(b) A civil action or proceeding shall not abate by reason of the death
of any party thereto, but may be continued by or against the executor or
administrator of the decedent. If a party plaintiff dies, his executor or
administrator may enter within six months of the plaintiff’s death or at any
time prior to the action commencing trial and prosecute the action in the
same manner as his testator or intestate might have done if he had lived.
If a party defendant dies, the plaintiff, within one year after receiving written
notification of the defendant’s death, may apply to the court in which the
action is pending for an order to substitute the decedent’s executor or
administrator in the place of the decedent, and, upon due service and return
of the order, the action may proceed. . . .’’
8
In both memoranda of decision, the court did not address the plaintiffs’
alternative arguments that they had representative standing to appeal pursu-
ant to the UPM.
9
The plaintiffs also argue that, by failing to raise the issue of standing at
any point during the underlying administrative proceedings before the
agency, the defendant is estopped from raising it now. Because, however,
subject matter jurisdiction ‘‘addresses the basic competency of the court,
[it] can be raised by any of the parties, or by the court sua sponte, at
any time.’’ (Internal quotation marks omitted.) ABC, LLC v. State Ethics
Commission, 264 Conn. 812, 823, 826 A.2d 1077 (2003). Moreover, ‘‘subject
matter jurisdiction cannot be conferred by waiver or consent . . . .’’ Man-
ning v. Feltman, 149 Conn. App. 224, 236, 91 A.3d 466 (2014). Therefore,
assuming, arguendo, that the defendant could have raised the standing
issue during the administrative proceedings, the doctrine of estoppel does
not apply.
10
We note that the trial court did not conclude that Freese failed to
plead facts establishing aggrievement in its memorandum of decision. That
omission does not preclude us from doing so on appeal, however, because
defects in subject matter jurisdiction ‘‘may be raised by a party, or by the
court sua sponte, at any stage of the proceedings, including on appeal.’’
(Internal quotation marks omitted.) Ajadi v. Commissioner of Correction,
280 Conn. 514, 533, 911 A.2d 712 (2006).
11
We note that the plaintiffs in the present cases could have availed
themselves of § 52-599 during the underlying administrative proceedings.
Our Supreme Court has held that § 52-599 (b) applies to situations in which
‘‘an executor has entered the administrative proceeding by filing an amended
complaint seeking any remedy to which the deceased complainant may have
been entitled . . . .’’ (Emphasis omitted; internal quotation marks omitted.)
Hillcroft Partners v. Commission on Human Rights & Opportunities, 205
Conn. 324, 331, 533 A.2d 852 (1987); see also Commission on Human
Rights & Opportunities v. Greenwich Catholic Elementary School System,
Inc., 202 Conn. 609, 613–14, 522 A.2d 785 (1987).
12
The plaintiffs assert in their main brief that an administrative appeal
pursuant to § 4-183 ‘‘is not a new proceeding, but the continuation of an
extant proceeding.’’ Regardless of whether that is true, however, the plain-
tiffs needed to establish their aggrievement in order to have standing to
commence their appeals, which they failed to do.
13
Our Supreme Court held in Fairfield Merrittview Ltd. Partnership v.
Norwalk, 320 Conn. 535, 133 A.3d 140 (2016), that the term ‘‘mistake’’ as
used in § 52-109 should be interpreted according to its ordinary meaning,
namely, ‘‘error, misunderstanding or misconception.’’ Id., 553 and n.21. In
adopting that definition, the court disavowed its previous interpretation of
‘‘mistake’’ as ‘‘an honest conviction, entertained in good faith and not
resulting from the plaintiff’s own negligence,’’ reasoning that such a defini-
tion was ‘‘too limiting and, practically, too difficult to apply, especially given
the ameliorative purpose of § 52-109.’’ Id., 553–54 n.21. We note that the
trial court did not have the benefit of our Supreme Court’s decision in
Fairfield Merrittview Ltd. Partnership at the time it issued its memoranda
of decision dismissing the plaintiffs’ appeals. In any event, the change in
the definition of ‘‘mistake’’ does not bear on our analysis of whether the
court properly denied the plaintiffs’ requests for substitution.
14
Unless specifically regulated by statute, the time frame for taking appeals
in Connecticut is governed by the rules of practice. See Practice Book § 63-
1 (a).
15
General Statutes (Cum. Supp. 1965) § 20-289 required the use of a citation
commanding a party to appear rather than a summons, and provided in
relevant part: ‘‘Any person aggrieved by an order made under this chapter
may, within thirty days after the entry of such order, appeal to the superior
court for the county in which he resides from such order, which appeal
shall be accompanied by a citation to said board to appear before said court.
Such citation shall be signed by the same authority and such appeal shall
be returnable at the same time and served and returned in the same manner
as is required in the case of a summons in a civil action. The authority
issuing the citation shall take from the applicant a bond or recognizance
to the state, with sufficient surety, to prosecute the application to effect
and to comply with the orders and decrees of the court in the premises.
Such application shall operate as a stay of such order pending the ultimate
determination of the appeal, including an appeal to the supreme court, if
any, unless otherwise ordered by the court. . . .’’
16
Moreover, we note that, subsequent to our Supreme Court’s decision in
Bank Building & Equipment Corp. of America v. Architectural Examining
Board, supra, 153 Conn. 121, the legislature amended § 20-289 to eliminate
the thirty day appeal period. Under the current version of § 20-289, ‘‘[a]ny
person aggrieved by an order made under this chapter may appeal from
such an order as provided in section 4-183.’’
17
It bears noting that our rules of practice explicitly contemplate that
the term ‘‘action’’ for purposes of substitution encompasses administrative
appeals brought under § 4-183. Practice Book § 9-20, which is identical
to § 52-109 in all material respects, provides: ‘‘When any action has been
commenced in the name of the wrong person as plaintiff, the court may, if
satisfied that it was so commenced through mistake, and that it is necessary
for the determination of the real matter in dispute so to do, allow any other
person to be substituted or added as plaintiff.’’ (Emphasis added.) Practice
Book § 14-6, which is entitled ‘‘administrative appeals are civil actions,’’
provides: ‘‘For purposes of these rules, administrative appeals are civil
actions subject to the provisions and exclusions of General Statutes § 4-183
et seq. and the Practice Book. Whenever these rules refer to civil actions,
actions, civil causes, causes or cases, the reference shall include administra-
tive appeals except that an administrative appeal shall not be deemed an
action for purposes of section 10-8 of these rules or for General Statutes
§§ 52-48, 52-591, 52-592 or 52-593.’’ (Emphasis added.)