Hartford Kosher Caterers, Inc. v. Gazda

• Decision Date: 04 December 1973
• Citation: 165 Conn. 478,338 A.2d 497
• Court: Connecticut Supreme Court
• Parties: HARTFORD KOSHER CATERERS, INC. v. Andrew GAZDA, Conservator (ESTATE of Anna WASIK). HARTFORD KOSHER CATERERS, INC. v. Andrew GAZDA, Conservator (ESTATE of Anna WASIK), et al.

Page 497

338 A.2d 497

165 Conn. 478

HARTFORD KOSHER CATERERS, INC. v. Andrew GAZDA, Conservator (ESTATE of Anna WASIK).

HARTFORD KOSHER CATERERS, INC. v. Andrew GAZDA, Conservator (ESTATE of Anna WASIK), et al.

Supreme Court of Connecticut.

Dec. 4, 1973.

David C. Bagley, Hartford, with whom, on the brief, was Morris G. Beizer, Hartford, for appellant plaintiff) in each case.

Walter B. Kozloski, New Britain, for appellee (named defendant) in each case.

John D. Bagdasarian, New Britain, for appellee (defendant Stanley C. Jayne et al.) in the second case.

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

LOISELLE, Associate Justice.

Hartford Kosher Caterers, Inc., hereinafter referred to as Hartford Kosher, brought suit against Andrew Gazda, conservator of the estate of Anna Wasik, and hereinafter referred to as the conservator, for specific performance of an alleged agreement for the sale of land pursuant to a Probate Court order. In a separate suit, Hartford Kosher appealed from a Probate Court decree dated August 8, 1969, which ordered that the conservator sell the property which was the subject of the specific performance action to Stanley Chin Jayne and George Chin Quock Yow, hereinafter referred to as Jayne and Yow. The trial court found the issues for the defendant in the first case and for the defendants in the second case and Hartford Kosher appealed in each case. Following a stipulation and motion to combine, the two cases were joined for this appeal.

Hartford Kosher has assigned error in several of the court's conclusions. The trial court's conclusions are tested by the finding; State v. Villafane, 165 Conn., 637, 638, 325 A.2d 251; Brauer v. Freccia, 159 Conn. 289, 293, 268 A.2d 645; and must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case. Connecticut Bank & Trust Co. v. Bovey, 162 Conn. 201, 205-206, 292 A.2d 899; Johnston Jewels, Ltd. v. Leonard, 156 Conn. 75, 79, 239 A.2d 500.

The finding ¹ as corrected reveals the following facts which are relevant to the claims of the appellant. The conservator filed an application with the Probate Court for the district of Berlin for permission to sell real estate. Following public notice, a hearing on the application was held July 14, 1969. At the hearing the probate judge announced that it would be continued to July 18, and that interested parties could submit bids containing one price and the terms and conditions of payment. After a consideration of the three bids submitted a decree was issued on July 22, 1969, which stated that the bid of Hartford Kosher was the best received, set forth Hartford Kosher's three-part offer in full, and ordered the conservator 'to enter into negotiations with' Hartford Kosher. Hartford Kosher was sent a certified copy of the July 22 decree on July 24, 1969. The judge, however, rescinded the decree in writing by a letter to Hartford Kosher dated July 30, 1969, because Hartford Kosher's bid had not complied with his instructions to submit only one bid. The probate judge was confused by Hartford Kosher's bid because the figure of $116,000 was inked over and the amount 'one hundred and ten thousand dollars' was written in.

Another hearing was held August 5, 1969, with all interested parties in attendance, including counsel for Hartford Kosher. The court inquired whether there were any objections to a second round of bids. Hartford Kosher made no objections and submitted a new bid, as did the other interested parties. On August 8, 1969, the judge issued a decree ordering the sale of the property to the defendants, Jayne and Yow, on the ground that their bid was in the best interest of the estate.

The initial question presented concerns Hartford Kosher's standing to appeal the Probate Court order of August 8, 1969. The defendants argue that Hartford Kosher lacks standing because it failed to state its interest in the motion for appeal addressed to the Probate Court. They also assert that since Hartford Kosher is not a 'person aggrieved' as required under § 45-288 of the General Statutes, the Superior Court lacked jurisdiction to hear the appeal. Section 45-288 provides that '(a)ny person aggrieved by any order, denial or decree of a court of probate . . . may appeal therefrom to the superior court . . ..' The appeal must set forth in the motion for appeal (1) the interest of the appellant in the subject matter of the decree or in the estate (General Statutes § 45-293), and (2) the adverse effect of the decree on that interest. These two elements, interest and adverse effect, must be shown to satisfy §§ 45-288 and 45-293. Maloney v. taplin, 154 Conn. 247, 250-251, 224 A.2d 731; Feigner v. Gopstein, 139 Conn. 738, 741, 97 A.2d 267. Within ten days of the return day of the motion for appeal the appellant must file his reasons of appeal with the Superior Court. '(P)leadings shall thereafter follow in analogy to civil actions.' Practice Book § 151.

A party who wishes to appeal from an order of the Probate Court must state his interest in the motion for appeal, and a failure to do so cannot be remedied by any statement in the reasons for appeal. Maloney v. Taplin,supra, 154 Conn. 249, 224 A.2d 731; Norton's Appeal, 46 Conn. 527, 528. In its motion for appeal, filed August 14, 1969, Hartford Kosher represented that it was one of three bidders for the purchase of real estate, that the Probate Court, as evidenced by a copy of its decree of August 8, 1969, ordered the property sold to another bidder, and that Hartford Kosher was thereby aggrieved. Aggrievement is a legal conclusion which, if stated without supporting allegations as to the particular nature of the aggrievement, is insufficient as the basis for appeal. Maloney v. Taplin, supra, 154 Conn. 250, 224 A.2d 731; Sacksell v. Barrett, 132 Conn. 139, 147, 43 A.2d 79. The facts alleged in the motion for appeal do not show an interest of Hartford Kosher sufficient to establish aggrievement under § 45-288. The mere assertion that Hartford Kosher bid and lost does not sustain the conclusion that it has a legal interest which has been injured. Kaskel v. Steinberg, 142 Conn. 379, 384, 114 A.2d 853.

Although Hartford Kosher did not satisfy the requirements for the motion for appeal, this failure is not fatal to its appeal. Aggrievement is a jurisdictional necessity, without which the Superior Court cannot hear the appeal, and the action is void. Kerin v. Goldfarb, 160 Conn. 463, 467, 280 A.2d 143. If the appellant is aggrieved but fails to show the basis for that aggrievement in the motion to appeal, the appeal is merely voidable. Pavlick v. Meriden Trust & Safe Deposit Co., 139 Conn. 733, 737, 97 A.2d 265; Fuller v. Marvin, 107 Conn. 354, 357, 140 A. 731; Orcutt's Appeal, 61 Conn. 378, 381, 24 A. 276. The defect in an appellant's motion must be seasonably asserted by a plea in abatement; Browning v. Steers, 162 Conn. 623, 625, 295 A.2d 544; Pavlick v. Meriden Trust & Safe Deposit Co., supra; or by a motion to erase or dismiss. Maloney v. Taplin, supra, 154 Conn. 251, 224 A.2d 731. 'If the right to file such a plea (or motion) is lost by reason of the appellee's filing either a general appearance or an answer to the reasons of appeal, there is a waiver by him of the defect.' Pavlick v. Meriden Trust & Safe Deposit Co., supra, 139 Conn. 737, 97 A.2d 267; 1 Locke & Kohn, Conn. Probate Practice § 208. All the defendants filed answers as their first response to Hartford Kosher's appeal, and, in effect, waived the insufficiency of the pleadings in the motion for appeal.

Since the defective nature of Hartford Kosher's motion for appeal did not provide a ground for dismissing this case, the next question is whether Hartford Kosher was aggrieved by the action of the Probate Court.

The concept of standing as presented here by the question of aggrievement is a practical and functional one designed to assure that only those with a genuine and legitimate interest can appeal an order of the Probate Court. 'A grievance to . . . (one's) feelings of propriety or sense of justice is not such a grievance as gives . . . a right of appeal.' Hartford National Bank & Trust Co. v. Malcolm-Smith, 129 Conn. 67, 69, 26 A.2d 234, 235. On the other hand, the frequent statement that a plaintiff, to be aggrieved, must have a direct pecuniary interest; Kerin v. Goldfarb, supra, Williams v. Houck, 143 Conn. 433, 437, 123 A.2d 177, Ciglar v. Finkelstone, 142 Conn. 432, 434, 114 A.2d 925, Weidlich v. First National Bank & Trust Co.,139 Conn. 652, 656, 96 A.2d 547; is too narrow to deal with the various types of cases presented by appeals from probate. See O'Leary v. McGuinness, 140 Conn. 80, 98 A.2d 600; Spencer's Appeal, 122 Conn. 327, 332-333, 188 A. 881; Saunders v. Denison, 20 Conn. 521, 524 (overruled in part by Sacksell v. Barrett, supra, 132 Conn. 146-147, 43 A.2d 79); Edwards v. Administrator of Botsford, 1 Root 244; 1 Locke & Kohn, op. cit. § 188.

The 'fundamental aspect of standing . . . (is that) it focuses on the party seeking to get his complaint before (the) court and not on the issues he wishes to have adjudicated.' Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947. The issue of whether Hartford Kosher was aggrieved under § 45-288 by the actions of the Probate Court is to be distinguished from the question of whether, on a review of the merits, the appellant will prevail. To examine the present issue the two parts of aggrievement need to be considered: (1) the nature of the appellant's interest, and (2) the adverse effect, if any, of the Probate Court's decision on that interest.

Hartford Kosher was the party with whom the conservator was ordered to negotiate in the Probate Court decree of July 22, 1969. The defendants claim that under this order Hartford Kosher had no rights because the conservator was merely ordered to...