Hall v. Dichello Distributors, Inc.

• Decision Date: 25 March 1986
• Docket Number: No. 4243,4243
• Citation: 6 Conn.App. 530,506 A.2d 1054
• Court: Connecticut Court of Appeals
• Parties: Gloria Dichello HALL, Executrix (ESTATE OF John F. DICHELLO) v. DICHELLO DISTRIBUTORS, INC., et al.

Page 1054

506 A.2d 1054

6 Conn.App. 530

Gloria Dichello HALL, Executrix (ESTATE OF John F. DICHELLO) v. DICHELLO DISTRIBUTORS, INC., et al.

No. 4243.

Appellate Court of Connecticut.

Argued Jan. 17, 1986.

Decided March 25, 1986.

Jules Lang, Norwalk, and Taggart D. Adams, Stamford, with whom, on brief, was Ira B. Grudberg, New Haven, for appellants (named defendant et al.).

John C. Yavis, Jr., Hartford, with whom were George A. Dagon, Jr., East Hartford, and Geraldine A. Lupoli, New Haven, for appellee (plaintiff).

Before HULL, SPALLONE and DALY, JJ.

HULL, Judge.

In this action, the defendants, Dichello Distributors, Inc. (DDI), James Dichello and Burton Zempsky, ¹ appeal from a judgment of the Superior Court requiring Zempsky to turn over to the plaintiff certain shares of stock in DDI, a corporation which distributes beer for Anheuser Busch. The defendants raise numerous grounds of error all primarily concerning the Superior Court's jurisdiction over the action and the procedures it used in reaching its decision. We conclude that the defendants' claims are without merit, and, accordingly, we find no error.

A brief summary of the undisputed facts and certain of the trial court's conclusions and orders is necessary as a background for our consideration of the issues raised in this appeal. On July 21, 1979, John F. Dichello (Dichello, Sr.), who, with his brother, James, began DDI, died. The bulk of the decedent's estate, which passed into a two part testamentary trust, consists of shares of common stock which constitute a 50 percent interest in DDI. The remaining shares are owned by James Dichello.

Zempsky and John Dichello, Jr. (Dichello, Jr.), were appointed co-executors and co-trustees under the decedent's original will and the stock was transferred to them in their fiduciary capacities. In 1984, the plaintiff, Gloria Dichello Hall, and her mother, Mildred Dichello, offered for probate a later will than that under which Zempsky and Dichello, Jr., were appointed. The Probate Court admitted that will which appointed Hall sole executrix and trustee. Zempsky and James Dichello, however, refused to recognize Hall's ownership of the 50 percent of the shares of DDI. While Zempsky and Dichello, Jr., delivered to Hall all of the other assets of the decedent's estate, Zempsky refused to deliver the stock certificates to Hall and to have them registered in her name. ²

Zempsky, in Zempsky's Appeal from Probate, 6 Conn.App. 521, 506 A.2d 1050 (1986), the companion to this case, appealed the Probate Court's action, which in effect removed him as executor and trustee, to the Superior Court. The court dismissed the case finding that it did not have jurisdiction over Zempsky's appeal because he had not shown aggrievement by the decrees of the Probate Court as required by General Statutes §§ 45-288 or 45-293. Today, we affirmed that judgment.

On September 13, 1984, Hall commenced this action against DDI, James Dichello, Zempsky and Dichello, Jr. ³ seeking delivery and recording of the appropriate shares of stock, various forms of permanent injunctive relief, other proper legal or equitable relief, and damages. On November 5, 1984, DDI filed a motion to stay on the ground that the question of who was the proper fiduciary was on appeal to this court in the companion case of Zempsky's Appeal from Probate, supra. That motion was denied. On January 30, 1985, DDI filed a motion to dismiss on the grounds that the Probate Court and not the Superior Court had jurisdiction over the case. That motion was also denied. After trial, the court ruled in favor of Hall and rendered a partial judgment granting equitable relief on May 25, 1985. The court ordered that Zempsky and Dichello, Jr., deliver the stock certificates to Hall, that the corporation register the transfer of the certificates in the name of Hall in her fiduciary capacity, and that the corporation deem Hall to have been a shareholder of record as of September 13, 1984. The court ordered certain other relief designed to protect Hall's rights as a shareholder and to preserve the corporate and financial status quo. This judgment left the question of damages open. On June 10, 1985, a joint appeal was initiated by all the defendants except Dichello, Jr. ⁴ The parties thereafter requested and were granted a stay of execution of the judgment pending the resolution of this appeal. On July 11, 1985, the court rendered a second judgment denying Hall's claim for damages and setting forth the conditions of the stay.

I

WHETHER THE TRIAL COURT ERRED IN FINDING THAT IT HAD

JURISDICTION OVER THE PLAINTIFF'S ACTION

The defendants first claim that the Superior Court's decree violates the statutory division of jurisdiction between the Probate Court and the Superior Court. Their arguement relies on three statutes: General Statutes § 45-4 which recites the general powers of Probate Courts, ⁵ General Statutes § 45-265 which provides in part that "[a]ny court of probate, after the removal of any fiduciary and the appointment of a successor fiduciary, may enforce the delivery to the successor fiduciary of any estate held by the former fiduciary by virtue of his original appointment in the same manner as a court of equity might do" (emphasis added); and General Statutes § 51-164s which provides in part that "[t]he superior court shall be the sole court of original jurisdiction for all causes of action, except such actions over which the courts of probate have original jurisdiction, as provided by statute." (Emphasis added.)

The defendants also rely on three cases for the undoubted proposition stated in First National Bank & Trust Co. v. McCoy, 124 Conn. 111, 115, 198 A. 183 (1938), that "[t]he Superior Court cannot exercise a primary jurisdiction which by the statute is reposed in the Courts of Probate." In that case, which involved the settlement of an executor's account with the Probate Court, our Supreme Court, quoting Brush v. Button, 36 Conn. 292, 294 (1869) stated that: "[the Probate Court] was the proper place [for the executors] to settle their account, and by our law is the only place it can be done." First National Bank & Trust Co. v. McCoy, supra. The Superior Court "can settle an account only on an appeal from doings of the Court of Probate and then only so far as it can without expressing a power vested exclusively in the Court of Probate." (Emphasis added.) Id. In LaBella v. LaBella, 134 Conn. 312, 57 A.2d 627 (1948), also relied on by the defendants, the Supreme Court found that the Superior Court did not have jurisdiction in a divorce proceeding over the decision concerning custody of a child who was not issue of the marriage. Finally in Owens v. Doyle, 23 Conn.Sup. 100, 103, 177 A.2d 465 (1961), modified, 152 Conn. 199, 205 A.2d 495 (1964), the Superior Court held that the Probate Court is the only tribunal competent to decide the question of due execution of a will.

Neither these cases, nor the statutes cited above, support the defendants' claim in this case, that either original or exclusive jurisdiction lies with the Probate Court. On the contrary, these cases make clear the limited types of actions over which the Superior Court does not exercise original jurisdiction: namely custody of a child not the issue of the marriage involved in a divorce, settlement of an executor's or administrator's account, and the question of due execution of a will. In defining the extent and nature of the Probate Court's jurisdiction, these cases make it very clear that the Superior Court had jurisdiction over this case. " ' "The fact that no other court has exclusive jurisdiction in any matter is sufficient to give the Superior Court jurisdiction of that matter." ' [State Ex Rel. Morris v. Bulkley, 61 Conn. 287, 374, 23 A. 186 (1892) ]." Carten v. Carten, 153 Conn. 603, 612, 219 A.2d 711, 716 (1966).

The Probate Court, because of its limited statutory jurisdiction, ⁶ could not have had even concurrent jurisdiction with the Superior Court over any counts of the plaintiff's complaint other than the first count in which she sought delivery of the shares of stock. ⁷ Hall's claims for registration of the stock, for retrospective status as a record holder of the stock, for an order concerning a shareholders' meeting, and for injunctive relief clearly are beyond the jurisdiction of the Probate Court. The authority of a Probate Court is "not coequal with that of the Superior Court when it is exercising its general equity powers ...." Phillips v. Moeller, 147 Conn. 482, 488, 163 A.2d 95 (1960). The Probate Court enjoys only a limited statutory jurisdiction and that jurisdiction "has not ... been extended to the adjudication of complex legal questions which pertain to the management and operations of a business corporation." Carten v. Carten, supra, 153 Conn. at 615, 219 A.2d 711.

The court did not err in holding that it had jurisdiction of the case and in denying the defendant DDI's ⁸ motion to dismiss and overruling its special defenses on this ground.

II

WHETHER THE TRIAL COURT ERRED IN FAILING TO STAY THE CASE

UNTIL THE PLAINTIFF'S STATUS AS TRUSTEE AND

EXECUTRIX HAD BEEN FINALLY DETERMINED

The defendants now claim that the trial court erred in denying their motion for a stay in which they claimed that the plaintiff's action was premature because it was filed before this court determined, in the companion case of Zempsky's Appeal from Probate, supra, who was the appropriate fiduciary. We need pause only briefly on this issue. We note that when this action was brought, Zempsky's appeal from the Probate Court orders which admitted the second will to probate and appointed Hall as successor fiduciary, had already been decided by the Superior Court. Zempsky had already filed the appeal in this court.

The filing of a probate appeal does nothing to impair the decree appealed from. Stevens' Appeal, 157 Conn. 576, 580-81, 255 A.2d 632 (1969); Silverstone v. Lillie, 141 Conn. 104,...