DocketNumber: No. CV90-033531
Citation Numbers: 1991 Conn. Super. Ct. 4554, 6 Conn. Super. Ct. 520
Judges: FULLER, JUDGE. CT Page 4555
Filed Date: 5/2/1991
Status: Non-Precedential
Modified Date: 4/18/2021
The executors filed a motion to dismiss the plaintiff's appeal for lack of subject matter jurisdiction pursuant to section 143 of the Connecticut Practice Book on the ground that the plaintiff failed to take the appeal within the 30 day time limit contained in section
When a motion to dismiss does not require facts outside the record it is equivalent to the former motion to erase, all well pleaded facts are admitted, and the complaint is construed most favorably to the plaintiff. American Laundry Machinery, Inc. v. State,
The plaintiff resides in Germany and was aware of the provisions of the decedent's will and that the estate was CT Page 4556 being probated in the Milford Probate Court. She retained an attorney in a law firm in Duesseldorf, Germany, Donna Shook-Wiercimok, who is admitted to practice in Germany and Massachusetts but not Connecticut. The attorney contacted the attorney for the estate, Joseph Buckley, in May 1990 and was informed about the proposed distribution of the estate, including the fact that the plaintiff was not going to receive certain stocks, bonds and securities in the estate distribution. On June 4, 1990 the probate court issued an order of notice of a hearing on the final account stating the persons to be notified of the hearing, which included the plaintiff. On June 5, 1990 the assistant clerk of the Milford Probate Court mailed a copy of the notice of the hearing scheduled for June 29, 1990 to the plaintiff. While the plaintiff's affidavit states that she did not receive a copy of the order of the probate court approving the final accounting, there is no claim that she did not receive the order of notice for the public hearing of June 29, 1990. The probate court also made a finding of notice, and it is presumed that letters which are mailed are received. Merrill, Lynch, Pierce, Fenner Smith, Inc. v. Cole,
The plaintiff's attorney in Germany did send a letter to the probate court dated June 19, 1990 questioning three items in the proposed final account, and requested the probate judge to inquire into them. The letter did not request notice of the court's final decision, attempt to enter an appearance for the plaintiff or request any other action to be taken by the probate court either before or after the hearing. Attorney Buckley attended the hearing as counsel for the estate, and at the end of the hearing the probate judge orally accepted the final account as presented. A written confirmation of approval of the account was sent to Buckley on July 2, 1990. No written notice was given to the plaintiff or her attorney that the account had been approved on June 29. Shook-Wiercimok sent a letter by Telefax on August 3, 1990 to the probate judge asking whether any decision had been made on the three items of personal property questioned in the June 19, 1990 letter. The probate court promptly responded on August 3, 1990 that the account had been approved on June 29. That letter was received August 13, 1990 by the plaintiff's attorney. The appeal was signed August 31, 1990 by Connecticut counsel retained by the plaintiff. It was apparently filed with the probate court the same day, and mailed to the defendants together with the order granting the probate appeal on September 17, 1990. CT Page 4557
While the plaintiff did not appeal within 30 days after the decision of the probate court was announced both orally on June 29 and in writing on July 2, the plaintiff claims that the appeal was timely because it was brought within 30 days after she received actual notice of the court's decision on August 13, 1990. Whether an appeal was taken within the statutory time limit is a question of fact. Denslow v. Moore, 2 Day 12, 21 (1805). In this case the relevant dates are clear from the record. Section
(a) An appeal under section
45a-186 (formerly section45-288 ) by those of the age of majority and who are present or who have legal notice to be present, shall be taken with thirty days. If such persons have no notice to be present and are not present, then appeal shall be taken within twelve months . . . .
The right to appeal from a decision of the probate court is purely statutory and the rights fixed by statute for taking and prosecuting the appeal must be met. State v. Goggin,
The plaintiff had notice of the probate court hearing of June 29, 1990. Section
The probate statutes require notice of the hearing not the decision of the probate court after the hearing. To avoid dismissal of this appeal, the plaintiff claims that post-hearing notice is required to her as a person interested in the estate, relying upon section
Whenever any court, including a court of probate, or the judge of any such court acting in any matter coming before him as a judge, makes or renders any decision, order, decree, denial or ruling, unless it is made or rendered in the presence of counsel in the matter, the clerk of the court shall immediately notify counsel, in writing, of the decision, order, decree, denial or ruling.
While this statute applies to probate court proceedings, it customarily arises in proceedings in the Superior Court CT Page 4559 where the clerk is required to give notice to counsel of record, meaning counsel who have entered an appearance for parties to the proceeding. No counsel ever appeared for the plaintiff. Attorney Shook-Wiercimok is not a member of the Connecticut Bar, could not and did not appear in the probate court proceedings, and no Connecticut attorney ever appeared for the plaintiff. The letter written by Shook-Wiercimok to the probate court did not request notice of the proceedings or attempt to enter an appearance for the plaintiff, but rather made inquiries of the court and asked it to take a close look at some of the provisions in the final account at the time of the hearing. The action taken did not impose any duty on the probate court to give post-hearing notice to either the plaintiff or her German attorney. Section
In Kron v. Thelen, supra, 197, it was held that section 45-289 was subject to the implied requirement that the probate court give notice of its decree before the 30 day appeal period became effective, and that an appeal filed within 30 days after the appellant became aware of the probate court's decree should not be dismissed. There it was recognized that while section 45-289 does not specifically require the probate court to notify interested parties of its decision, for the right of appeal to have any meaning a prospective appellant must have either active or constructive notice that a decision has been reached, and that due process requires that all persons directly concerned with the result of an adjudication be given reasonable notice. Id., 192, 193.
Where the concept of due process applies, the next question is what process is due. Barlett v. Krause,
Since the appeal was not taken within the 30 day statutory time limit, the motion to dismiss is granted.
ROBERT A. FULLER, JUDGE
American Laundry MacHinery, Inc. v. State , 190 Conn. 212 ( 1983 )
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole , 189 Conn. 518 ( 1983 )
Heiser v. Morgan Guaranty Trust Co. , 150 Conn. 563 ( 1963 )
Phinney v. Rosgen , 162 Conn. 36 ( 1971 )
Houston v. Highway Commissioner , 152 Conn. 557 ( 1965 )
Robinson v. Guman , 163 Conn. 439 ( 1972 )
Fuller v. Marvin , 107 Conn. 354 ( 1928 )
Delehanty v. Pitkin , 76 Conn. 412 ( 1904 )
Exchange Buffet Corporation v. Rogers , 139 Conn. 374 ( 1952 )