Lesnewski v. Redvers

• Decision Date: 27 December 2005
• Docket Number: No. 17377.,17377.
• Citation: 886 A.2d 1207,276 Conn. 526
• Court: Connecticut Supreme Court
• Parties: Anne B. LESNEWSKI v. Trevor S. REDVERS.

886 A.2d 1207

276 Conn. 526

Anne B. LESNEWSKI v. Trevor S. REDVERS.

No. 17377.

Supreme Court of Connecticut.

Argued September 6, 2005.

Decided December 27, 2005.

Royal J. Stark, with whom, on the brief, were Richard Small and Lisa Barry, Meriden, certified legal interns, for the appellant (plaintiff).

George C. Heck, New London, for the appellee (defendant).

Shelley A. White, filed a brief for Advocacy Unlimited, Inc., et al. as amici curiae.

SULLIVAN, C.J., and NORCOTT, KATZ, PALMER and VERTEFEUILLE, Js.

VERTEFEUILLE, J.

The plaintiff, Anne B. Lesnewski, appeals from the judgment of the Superior Court dismissing her appeal from the Probate Court's decree approving the petition of the defendant, Trevor S. Redvers, her conservator, for additional compensation under General Statutes § 45a-594 (a). The plaintiff claims that the trial court improperly determined that it lacked subject matter jurisdiction to hear her appeal. We agree with the plaintiff, and, accordingly, we reverse the judgment of the trial court.

The record reveals the following facts and procedural history. The plaintiff is a conserved person with regard to both her estate and person.¹ The defendant is the plaintiff's former court-appointed conservator. During the period that the defendant acted as the plaintiff's conservator, the plaintiff resided in humane institutions of the state of Connecticut and was supported, in whole or in part, by the state.

On February 14, 2002, the defendant submitted to the Probate Court an interim accounting of the plaintiff's estate for the prior year. The interim accounting showed that during the prior year, the plaintiff had a gross income of $10,059.96 and the defendant was claiming a fee of $4087.50 for his services. On September 16, 2002, the defendant filed with the Probate Court a final accounting of the plaintiff's estate covering the period from February 15, 2002, to September 16, 2002. The final accounting revealed that the plaintiff's gross income for this period was $5720.69 and the defendant's claimed fee for his services was $2287.50. The defendant also filed a petition for additional compensation under § 45a-594 (a),² which would enable him to receive compensation in excess of 5 percent of the plaintiff's gross income for any accounting period. The plaintiff, through her attorney, opposed the interim and final accountings, as well as the defendant's petition for additional compensation. The Probate Court issued decrees approving both the interim and final accountings, and the defendant's petition for additional compensation, but limited his approved compensation to $4750 for both accounting periods. On the same date, the Probate Court also ordered the plaintiff's estate to pay the court fees and attorney's fees, and removed the defendant as the plaintiff's conservator. No successor conservator was appointed at that time.³

The plaintiff, pursuant to General Statutes § 45a-186, timely appealed from the decrees of the Probate Court to the Superior Court. On appeal, the plaintiff challenged the Probate Court's allowance of additional compensation and the requirement that the plaintiff's estate pay attorney's fees and Probate Court fees. After a one day trial, the trial court, on its own motion, dismissed the plaintiff's appeal. The trial court determined that, because the plaintiff had been adjudicated incompetent to handle her affairs, the appeal only could have been brought by her conservator, a guardian ad litem, or next friend. Therefore, the trial court concluded that, because the plaintiff had brought the appeal on her own with only the assistance of counsel, it "does not have jurisdiction."⁴ This appeal followed.⁵

On appeal, the plaintiff claims that the trial court improperly determined that a conserved person represented by counsel could not appeal a Probate Court decree in her own name. Specifically, the plaintiff argues that the trial court improperly relied on the general rule stated in Cottrell v. Connecticut Bank & Trust Co., 175 Conn. 257, 398 A.2d 307 (1978), that incapable persons cannot bring an appeal without a guardian or next friend, because subsequent decisions of this court have created exceptions to that rule that are applicable in the present case. In the alternative, the plaintiff claims that even if a conserved person is required to bring an appeal through a conservator, guardian ad litem, or next friend, the trial court improperly determined that the failure to do so deprives the court of subject matter jurisdiction. Rather, the plaintiff argues that she should have been given notice of this irregularity of form and an opportunity to amend it. In response, the defendant contends that the trial court properly determined that a conserved person cannot initiate an appeal in her own name and, therefore, the plaintiff's appeal properly was dismissed for lack of subject matter jurisdiction. In particular, the defendant argues that the exceptions recognized by this court since Cottrell are inapplicable in the present case and that any additional exceptions would undermine the public policies embodied in the Probate Court system. We first conclude that the issue presented in this case does not raise a question of subject matter jurisdiction. We further conclude that an exception to the rule barring incapable persons from appealing in their own name may extend to the plaintiff, if she can persuade the trial court, after a hearing, that it would be in her best interests to bring this appeal.⁶

We begin with the issue of subject matter jurisdiction, which "is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong." (Internal quotation marks omitted.) New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 334, 857 A.2d 348 (2004). The Superior Court has the statutory authority to hear and determine appeals brought by a person aggrieved by any Probate Court order, denial or decree. General Statutes § 45a-186. An appeal by a person lacking legal capacity brought without the aid of a guardian or next friend involves a question of "an amendable irregularity which could be waived." (Internal quotation marks omitted.) Newman v. Newman, 235 Conn. 82, 102, 663 A.2d 980 (1995). Thus, the issue presented by this appeal is whether the plaintiff's attempt to appeal in her own name with only the assistance of her attorney constitutes an irregularity that requires dismissal of her appeal.⁷ As this is a question of law, our review is plenary. See First Union National Bank v. Hi Ho Mall Shopping Ventures, Inc., 273 Conn. 287, 291, 869 A.2d 1193 (2005).

We begin our analysis with Cottrell v. Connecticut Bank & Trust Co., supra, 175 Conn. at 259, 398 A.2d 307, in which this court considered the same question that is squarely before the court in the present case: whether an adjudicated incapable person⁸ may appeal in her own name as an aggrieved party from a Probate Court decree. In Cottrell, the plaintiff sought to appeal from an order from the Probate Court approving an accounting of her deceased mother's estate. Id., at 258, 398 A.2d 307. The defendant administrators of that estate filed a plea in abatement alleging that the plaintiff was legally incapable of bringing the appeal because the Probate Court had appointed a guardian ad litem to represent her in the settlement of her mother's estate and a conservator of her estate also had been appointed. Id., at 258-59, 398 A.2d 307. The plaintiff's guardian ad litem had refused to file such an appeal. Id., at 262, 398 A.2d 307. The trial court overruled the plaintiff's demurrer to the plea in abatement and, upon her failure to plead further, the trial court rendered judgment for the defendants. Id., at 259, 398 A.2d 307.

On appeal, the plaintiff argued that an incapable person "may initiate proceedings in his or her own name to recover property." Id. This court disagreed and cited the general rule that an individual who has been adjudicated incapable cannot initiate a suit or bring an appeal on her own behalf. Id., at 261, 398 A.2d 307. The court noted, however, that prohibiting the plaintiff from filing an appeal under the circumstances of that case would be incongruous with the purpose of appointing a legal representative, which is to ensure that the incapable person is well represented. Id., at 263, 398 A.2d 307. The court therefore concluded that "where, as here, those appointed to protect the interest of an [incapable person] fail to appeal from a decision in which the [incapable person] has a real interest, an action may be brought by a next friend in order that a court may review the substantive issues involved." Id., at 265, 398 A.2d 307. In crafting this exception, the court noted that the legal disability of an adult incapable person is analogous to that of a minor, and it had been a long established practice in this state to permit minors to initiate a court action through a next friend. Id., at 264, 398 A.2d 307; see generally Orsi v. Senatore, 230 Conn. 459, 467, 645 A.2d 986 (1994) (stating that minors may sue by next friend notwithstanding existence of guardian when "the guardian is absent, or is unwilling or unable to institute or prosecute the required action or appeal, and especially when, though declining to take such action himself, he does not forbid such proceeding, or when he is disqualified by interest hostile to that of the infant, or is for other reasons an improper or unsuitable person to prosecute such actions on behalf of the ward" [internal quotation marks omitted]).

The plaintiff in the present case, however, did not bring her appeal through a next friend, as authorized in Cottrell, but instead appealed in her own name represented by counsel. She relies, in part, on Newman v. Newman, supra, 235 Conn. 82, 663 A.2d 980, wherein the court, in the legally analogous context of minor children, concluded that, under certain...