Doyle v. Reardon

• Decision Date: 16 June 1987
• Docket Number: No. 5311,5311
• Citation: 527 A.2d 260,11 Conn.App. 297
• Parties: Donald H. DOYLE et al. v. James D. REARDON, Conservator (ESTATE OF Lena K. DOYLE).
• Court: Connecticut Court of Appeals

Page 260

527 A.2d 260

11 Conn.App. 297

Donald H. DOYLE et al. v. James D. REARDON, Conservator (ESTATE OF Lena K. DOYLE).

No. 5311.

Appellate Court of Connecticut.

Argued March 31, 1987.

Decided June 16, 1987.

Daniel J. Mahaney, Waterbury, with whom was John D. Mahaney, for appellant (plaintiff Donald H. Doyle, Jr.)

James T. Graham, with whom were W. Campbell Hudson and, on the brief, Charles M. Tighe, Essex, for appellee (defendant).

Before DUPONT, C.J., and DALY and BIELUCH, JJ.

DUPONT, Chief Judge.

This is an appeal by the plaintiff Donald H. Doyle, Jr., from the trial court's granting of the defendant's motion to dismiss the plaintiffs' appeal from the Essex Probate Court. The Probate Court had granted the defendant's motion for permission to institute suit and to employ counsel. Donald H. Doyle, Jr., is the grandson of Lena K. Doyle. ¹ The defendant is the conservator of the estate of Lena K. Doyle. The motion to dismiss in the, Superior Court alleged that the court lacked subject matter jurisdiction because the statutory requirements of General Statutes § 45-288 had not been met. ² The trial court held that the plaintiff was not appealing from an "order, denial or decree" of a court of probate, and further that he was not aggrieved by its action, and, therefore, lacked standing to appeal.

In 1983, Lena K. Doyle conveyed real estate to her grandson, the plaintiff. It is this conveyance which lies at the center of this case. On October 22, 1985, a conservator was appointed for the estate of Lena K. Doyle after a hearing initiated by two of her children, in which it was determined that she was incompetent to handle her own affairs. ³ The conservator of the estate thereafter applied for permission to institute suit and to employ counsel to investigate the validity of the transfer and to question "the circumstances surrounding the conveyance of [the] real estate."

On January 9, 1986, the Probate Court held a hearing on the motion. The court found that the "conservator inquiry is not a frivolous one." It further found that "[i]t would be in the best interest of Lena K. Doyle to allow the conservator to proceed to Superior Court for a proper determination of the question." The court stated that the conservator had the power to bring the action "as reasonably implied in Connecticut General Statutes § 45-75(a) and as properly derived from Connecticut case law in Kleinman v. Marshall, [192 Conn. 479, 472 A.2d 772 (1984) ]." In addition, the court reserved the right, upon a report back, to review and act on fees and expenses, after resolution of the action in the Superior Court. It authorized legal fees not in excess of $2500 without the necessity of further action by the court. The court struck out the preprinted words, "And it is ORDERED AND DECREED that," from its written decision. It subsequently issued, however, a "Decree Allowing Appeal from Probate" in which it twice described its action on the conservator's motion as an "Order and Decree."

On appeal to the Superior Court, the plaintiff claimed that he was not accorded federal constitutional due process at the probate hearing, and that the Probate Court did not have jurisdiction to authorize the defendant's suit or the expenditure of assets of the estate for that purpose. The plaintiff also claimed that an evidentiary hearing was needed on the defendant's motion to dismiss in the Superior Court.

The provisions of General Statutes § 45-288 enable "any person aggrieved by any order, denial, or decree" of a Probate Court to appeal to the Superior Court. The statute, therefore, confers standing to a party when there is both (1) an "order, denial, or decree" of a Probate Court and (2) aggrievement resulting to such party therefrom. The plaintiff first claims that an appeal from the Probate Court's action to the Superior Court was proper because the Probate Court's action was an order or decree. The trial court concluded that the Probate Court's decision was not an order or decree because it did not direct or command the conservator to bring a lawsuit, but only "suggested that it would be in the best interest of Lena K. Doyle to allow the conservator" to bring suit in the Superior Court.

The defendant argues that the Probate Court's action was not a decree because it was not needed for the institution of a suit in this case. The Probate Court, by stating that the conservator had the power to bring an action pursuant to § 45-75(a) and case law, may have agreed with this contention, to the extent that it believed a ruling by it was not necessary. General Statutes § 45-75(a) ⁴ does not specifically authorize suits by a conservator of an estate to set aside real estate conveyances previously made by his ward. The Probate Court relied on this statute and on Kleinman v. Marshall, supra, for the proposition that the conservator had the authority to bring such a suit. Kleinman itself, although involving a suit to set aside a real estate conveyance previously made by the ward of a conservator, is silent as to whether the conservator first sought permission from the Probate Court to bring the suit, although it is stated that "shortly after [the] appointment," the conservator sued. ⁵ It is thus likely that prior permission was not sought.

If, however, prior permission to bring suit is not sought, the conservator proceeds at his peril in terms of recouping the expenses of such a suit, in the event he engages the services of an attorney to prosecute the action. See Elmendorf v. Poprocki, 155 Conn. 115, 230 A.2d 1 (1967). A conservator of an estate only has those powers expressly or impliedly given by statute. In exercising those powers, he is under the supervision and control of the Probate Court. Id., 118, 230 A.2d 1. "While a conservator, as any other fiduciary, may act at his peril and on his own personal responsibility, before his ward's estate can be directly obligated to pay for services rendered to that estate at the request or with the knowledge of the conservator, the Probate Court must expressly approve the necessity and propriety of the utilization of those services and the reasonableness of the charge demanded for them." Id., 119, 230 A.2d 1. Elmendorf interpreted General Statutes § 45-75(a) as not giving a conservator the authority to bind an estate of a ward to compensate others for services rendered, such as for a real estate commission incurred in the sale of an estate asset. It holds, rather, that a Probate Court must expressly authorize, in advance, or approve subsequently the expenditure of funds by a conservator for that purpose. Id., 119, 230 A.2d 1.

Although Elmendorf does not specifically deal with the necessity to obtain prior permission to bring a law suit in order to retrieve an estate asset and to charge the ward's estate for the costs of such suit, its language is broad enough to include that situation. There is "nothing in § 45-75 of the General Statutes which indicates the legislature intended to allow a conservatrix to bind her ward's estate to an implied contract ... without the express approval of the Probate Court." Id., 119-20. In this case, the conservator sought prior permission to bind his ward's estate upon the execution of an express contract for legal services. Whether a contract of a conservator is express or implied, prior permission from the Probate Court must be obtained in order to charge the ward's estate for the costs connected with such contracts, without subjecting the conservator to a risk later of nonrecoupment.

Elmendorf and Kleinman when read together are not inconsistent. The former explicitly established the proposition that General Statutes § 45-75(a) does not authorize the expenditure of funds by a conservator for expenses unrelated to the support of a ward, and arising from a contract made by a conservator. The latter impliedly established that permission from a Probate Court for a suit to set aside a conveyance need not be obtained. These cases, when read together, establish, therefore, that although permission to bring a suit to set aside a conveyance of a ward is not statutorily mandated, the court must nonetheless approve of any expenditure of the estate's funds used for the costs involved in such suit.

The relevance of these cases to the present case is their impact on whether the granting of permission to sue and employ counsel is a decree or order of the Probate Court. Since we have interpreted § 45-75(a) to require authorization of this suit by the Probate Court in order for the conservator to be able to charge this estate for the cost of the suit, the authorization necessarily is a decree. A "decree" is a judicial fiat or pronouncement determining a matter in controversy. Raymond v. Raymond, 109 R.I. 265, 273, 284 A.2d 64 (1971). Such term refers to and encompasses the determination made by the Probate Court in this case.

Although the Probate Court's authorization of expenses for a lawsuit which was deemed to be in the best interest of the ward may not have required or ordered future litigation, it was as final a judgment or decree which that court, as a court of limited jurisdiction could render. Ramsdell v. Union Trust Co., 202 Conn. 57, 63 n. 3, 519 A.2d 1185 (1987). If the conservator here wished to obtain the litigation expenses of a suit to be brought by him, without risk of personal liability later, the only way to do so was to get prior approval from the Probate Court. Neither the Probate Court, nor the trial court on appeal from the Probate Court, had jurisdiction actually to determine whether the conservator was entitled to equitable relief by rescission of the conveyance. Both, however, had the jurisdiction to determine and review de novo, respectively, whether the conservator had reasonable ground to sue the plaintiff in a court of general jurisdiction. Id., 73-74. The determination made by the Probate Court was a decree because the Probate Court adjudicated the...