Heussner v. Hayes

• Citation: 961 A.2d 365,289 Conn. 795
• Decision Date: 30 December 2008
• Docket Number: No. 17979.,No. 17980.,17979.,17980.
• Court: Supreme Court of Connecticut
• Parties: Janet D. HEUSSNER v. Gregory A. HAYES, Conservator (Estate of Anastasia Heussner), et al.

961 A.2d 365

289 Conn. 795

Janet D. HEUSSNER v. Gregory A. HAYES, Conservator (Estate of Anastasia Heussner), et al.

No. 17979.

No. 17980.

Supreme Court of Connecticut.

Argued October 24, 2008.

Decided December 30, 2008.

Royal J. Stark, for the appellant (plaintiff).

David S. Hardy, with whom, on the brief, was Anthony M. Fitzgerald, New Haven, for the appellees (named defendant et al.).

NORCOTT, KATZ, PALMER, ZARELLA and SCHALLER, Js.

KATZ, J.

This case arises from the Superior Court's joint memorandum of decision granting the motions of the defendants Gregory A. Hayes and George T. Heussner, conservators of the estate of Anastasia Heussner (ward), to dismiss two companion appeals¹ filed by the plaintiff, Janet D. Heussner, from orders of the Probate Court. The sole issue in both appeals is whether an incorrect return date set by the Probate Court deprives the Superior Court of subject matter jurisdiction over a probate appeal after the appeal has been allowed by the Probate Court. We hold that it does not, and we reverse the judgment of the Superior Court.

The record reveals the following undisputed facts and procedural history. The plaintiff is the adult daughter of the ward. On December 18, 2002, Hayes, an attorney and the ward's former guardian ad litem, and George T. Heussner, the ward's son, were appointed conservators of the ward's estate. In 2006, the conservators sought permission from the Probate Court to obtain a $200,000 line of credit secured by a mortgage on the ward's residence and to sell certain personal items allegedly belonging to the ward to secure funds to pay for her ongoing care. The Probate Court granted permission to obtain the line of credit on May 17, 2006, and granted permission to sell the personal items on July 19, 2006, entering the appropriate orders on those dates. The plaintiff timely moved for permission to appeal from both orders pursuant to General Statutes § 45a-186 (a),² and the Probate Court allowed the appeals and ordered notice to be provided to the conservators and two other individuals,³ as provided by General Statutes § 45a-192.⁴ In its orders, the Probate Court set forth a return date of September 20, 2006. The plaintiff filed applications for fee waiver to pursue the appeals with the Superior Court, which were granted. On September 11, 2006, the plaintiff filed in Superior Court copies of the decrees from the Probate Court allowing the appeals, along with returns of service. The plaintiff's filings did not, however, include a summons.

On October 25, 2006, the conservators moved in Superior Court to dismiss the appeals. They first claimed that the failure to return process in accordance with the relevant statutes deprived the court of personal jurisdiction over them, but later contended that the failure to meet the statutory requirements for taking a probate appeal, including those related to process, deprived the Superior Court of subject matter jurisdiction over the appeals. Specifically, the conservators contended that the Superior Court lacked jurisdiction to hear the appeals because: contrary to the specifications of General Statutes § 52-48(a),⁵ which provides that civil process "brought to the Superior Court may be made returnable on any Tuesday in any month," the return date set by the Probate Court of September 20, 2006, was a Wednesday; service on one of the conservators, George T. Heussner, was made to the wrong address; and the plaintiff had failed to return process in accordance with General Statutes § 52-46a.⁶ The plaintiff opposed the motions and concurrently filed motions to amend process in the Superior Court, pursuant to General Statutes § 52-72,⁷ attempting to correct the defects alleged by the conservators, noting that the defective return date had been set by the Probate Court and that a scrivener's error had caused the marshal to make service to the wrong address. The conservators opposed the motions to amend, claiming, inter alia, that the time allowed to amend process had passed. Additionally, the conservators contended that only the Probate Court, not the Superior Court, can amend process in connection with a probate appeal. At a hearing on the pending motions before the Superior Court, the court questioned whether it was authorized to amend process or whether that power was vested exclusively with the Probate Court. Thereafter, the plaintiff filed a motion in the Probate Court to enter corrected orders allowing the appeals and setting forth a proper return date. On December 15, 2006, the Probate Court entered a second order allowing the appeals that set forth a new return date of January 16, 2007, which was a Tuesday. A return of service dated December 27, 2006, appears in the record and indicates that all parties properly were served. The Superior Court subsequently denied the plaintiff's requests to amend process, without written decision.

On January 22, 2008, the Superior Court rendered judgments dismissing the appeals for lack of jurisdiction. In its joint memorandum of decision, the Superior Court stated that § 52-48(b) requires that process be returned within two months from the date process is served, and noted that, even if a return date is amended, it must comply with such statutory requirements. The court determined that this rule applies to probate appeals and that, if a plaintiff fails to return process for such appeals to the Superior Court within two months after service, such a defect implicates the subject matter jurisdiction of the court. The court determined that, although the Probate Court had amended the return date, the amended return date fell outside the window mandated by statute. Accordingly, the Superior Court dismissed the appeals. The plaintiff timely appealed from the judgments to the Appellate Court, and we transferred the appeals to this court, pursuant to Practice Book § 65-1 and General Statutes § 51-199(c).

On appeal, the plaintiff claims that the Superior Court's dismissal of her appeals was improper for two reasons. First, she claims that probate appeals are not governed by the rules of process that are applicable to civil actions, set forth in §§ 52-46, 52-48 and 52-72. The plaintiff asserts that jurisdiction over a probate appeal attaches by operation of law when the appeal properly is taken and allowed by the Probate Court. Therefore, she contends that a return date that does not comply with the statutory requirements governing mesne process cannot divest the Superior Court of that jurisdiction because it already has attached. The plaintiff further contends that the fact that a separate statutory provision, specifically, § 45a-192, provides for notice in probate appeals without reference to a particular procedure indicates that the mesne process requirements for civil actions are not intended to apply to probate appeals. In support of these contentions, the plaintiff cites Donovan's Appeal from Probate, 40 Conn. 154 (1873), Coughlan v. Murphy, 134 Conn. 601, 59 A.2d 729 (1948), and In re Michaela Lee R., 253 Conn. 570, 756 A.2d 214 (2000). Second, she claims that, if this court should find that mesne process requirements are applicable to probate appeals, because the notice specified for probate appeals pursuant to § 45a-192 only must be "reasonable," defects in process could have been cured under § 52-72 even after the two month time limit for return of process set by § 52-48(b).

In response, the conservators contend that probate appeals are civil actions subject to the requirements of mesne process, and that the plaintiff's failure to satisfy those requirements deprived the Superior Court of jurisdiction over her appeals. Specifically, the conservators claim that, because the original documents filed by the plaintiff do not contain a proper writ of summons or return of service, the original return date was improper and the amended documents were untimely, process was not sufficient to satisfy statutory requirements.⁸ Because the plaintiff did not comply with such statutory requirements, the Superior Court therefore lacked subject matter jurisdiction over the appeals. In support of their claims, the conservators cite a line of cases to stand for the proposition that probate appeals that do not comply with the requirements of mesne process must be dismissed for lack of jurisdiction. See Campbell's Appeal from Probate, 76 Conn. 284, 56 A. 554 (1903); Kucej v. Kucej, 34 Conn.App. 579, 642 A.2d 81 (1994); Bergin v. Bergin, 3 Conn. App. 566, 490 A.2d 543 (1985). Finally, the conservators contend that the authority to amend any defects in the appeals rested solely with the Probate Court, pursuant to General Statutes § 45a-189,⁹ and thus the Superior Court properly could not have amended process according to the remedial provisions of § 52-72.

We conclude that jurisdiction over a probate appeal attaches when the appeal properly is taken and allowed and that the requirements of mesne process do not apply to probate appeals. Accordingly, we do not reach the parties' claims concerning whether the Superior Court properly could have amended the defective process under § 52-72.

The standard of review for a motion to dismiss is well settled. "A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.... Baskin's Appeal from Probate, [194 Conn. 635, 640, 484 A.2d 934 (1984)]." (Internal quotation marks omitted.) Amore v. Frankel, 228 Conn. 358, 372, 636 A.2d 786 (1994). Whether an issue implicates subject matter jurisdiction is a question of law over which our review is plenary. In re Joshua S., 260 Conn. 182, 193, 796 A.2d 1141 (2002).

The Probate Court is a court of limited jurisdiction prescribed by statute, and it may exercise only such powers as are necessary to the performance of its duties. Massey v. Foote, 92 Conn. 25, 26, 101 A. 499 (1917...