Czaja v. Sallak, 5609

• Decision Date: 23 March 1988
• Docket Number: No. 5609,5609
• Court: Connecticut Court of Appeals
• Parties: Georgianna CZAJA v. Joseph SALLAK et al.

Page 1001

536 A.2d 1001

13 Conn.App. 411

Georgianna CZAJA v. Joseph SALLAK et al.

No. 5609.

Appellate Court of Connecticut.

Argued Jan. 5, 1988.

Decided Feb. 9, 1988.

Certification Denied March 23, 1988.

Donald J. McCarthy, Jr., with whom, on the brief, was Kirby G. Huget, Hartford, for appellant (plaintiff).

Gregory M. Harris and Richard J. Guliani, Middletown, for appellees (defendants).

Before BORDEN, EDWARD Y. O'CONNELL and STOUGHTON, JJ.

PER CURIAM.

The plaintiff appeals from the judgment of the trial court dismissing her appeal from a decision of the probate court for the district of Haddam. That decision denied the plaintiff's application for appointment of a conservator of the named defendant, her father. The trial court granted the motion to dismiss filed by the defendant James Wiknik, the named defendant's grandson, on the ground that the plaintiff had not sufficiently alleged aggrievement.

It is not necessary to address the merits of the plaintiff's claims of error, because this appeal is controlled by our recent decision in Burton v. Planning Commission, 13 Conn.App. 400, 536 A.2d 995 (1988). In Burton, we held that the timely filing of a memorandum of law in opposition to a motion to dismiss, pursuant to Practice Book § 143, ¹ is mandatory, and that noncompliance with the five-day time period mandated by § 143 required that the motion be granted without regard to its merits. Burton rested on our reading of the decision of our Supreme Court in Hughes v. Bemer, 200 Conn. 400, 510 A.2d 992 (1986), which held the identical language of Practice Book § 155 to be mandatory. As in Hughes v. Bemer, supra, 402, 510 A.2d 992, the defendants in this case rely on the plaintiff's noncompliance with Practice Book § 143 as an alternate ground on which to sustain the judgment of the trial court. See Practice Book §§ 4013(a)(1) and 4066(a). This claim of the defendants is dispositive of this appeal.

The trial court record discloses that on June 2, 1986, one of the defendants, Wiknik, filed a motion to dismiss the plaintiff's appeal from the probate court, together with a memorandum of law in support thereof. On June 15, 1986, the plaintiff filed a motion for extension of time to file her memorandum of law in opposition to the motion to dismiss. No action was taken on that motion. The motion to dismiss was heard on October 14, 1986. The plaintiff's memorandum of law was filed at 9:48 a.m. on that day. ² The trial court, nonetheless, addressed the merits of the motion to dismiss, and granted the motion. We are precluded from reaching the merits of the plaintiff's claims of error because she did not comply with the mandate of Practice Book § 143 to file a timely memorandum of law in opposition to the defendant's motion to dismiss. This noncompliance means that the plaintiff "shall be deemed by the court to have consented to the granting of the motion." Practice Book § 143; Burton v. Planning Commission, supra.

There is no error.

1 "[Practice Book] Sec. 143--GROUNDS

"The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service...