Merrimac Associates, Inc. v. DiSesa

• Decision Date: 13 May 1980
• Citation: 180 Conn. 511,429 A.2d 967
• Court: Connecticut Supreme Court
• Parties: MERRIMAC ASSOCIATES, INC. v. Joseph DiSESA et al.

Page 967

429 A.2d 967

180 Conn. 511

MERRIMAC ASSOCIATES, INC. v. Joseph DiSESA et al.

Supreme Court of Connecticut.

Argued Jan. 9, 1980.

Decided May 13, 1980.

Jack Stock, Westport, with whom, on the brief, was Eugenie Dieringer, Fairfield, for appellant (plaintiff).

H. William Shure, New Haven, for the appellee (named defendant et al.).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and HEALEY, JJ.

HEALEY, Associate Justice.

The sole issue on this appeal is whether the plaintiff is aggrieved by, and therefore has standing to appeal from, a probate court decree approving the sale of real estate that is part of a decedent's estate. The plaintiff appealed to the Superior Court from an order of the Probate Court for the district of Madison approving the sale at a continued hearing, giving the following "Reasons of Appeal": ¹ (1) The Probate Court conducted the continued hearing upon the application to sell the real estate prior to the announced time of that hearing without notice to the plaintiff; and (2) the plaintiff was thereby deprived of the opportunity of submitting to the court its offer to purchase those premises, although the purpose of continuing the original hearing was to afford it that very opportunity. The defendants DiSesa and Kilpatrick, who were executors of the will under which the real estate in question was being sold, moved to dismiss the appeal for the reason that the Superior Court lacked jurisdiction of the subject matter because the plaintiff is not an aggrieved party under General Statutes § 45-288. ² The motion to dismiss was granted and this appeal followed.

Before deciding the motion to dismiss the trial court conducted an evidentiary hearing limited solely to the issue of the plaintiff's aggrievement, and, hence, standing to appeal under General Statutes § 45-288. Because the right to appeal from the decision of a probate court is statutorily conferred by § 45-288, the absence of aggrievement, as required by that statute, is a defect that deprives the Superior Court of jurisdiction to entertain the appeal. See Maloney v. Taplin, 154 Conn. 247, 250, 224 A.2d 731 (1966). Thus, the question before the trial court was whether, as a matter of fact, the plaintiff was aggrieved, a precondition to the right of appeal and the jurisdiction of the Superior Court. ³

The trial court based its decision upon the following relevant facts: On January 18, 1979, at 11 a. m. a hearing was held at the Madison Probate Court on the defendants' application for approval of a sale-purchase agreement for certain real estate executed by the defendants with Strawberry Hill Associates. By a letter, dated December 20, 1978, the defendant DiSesa invited the real estate broker for the plaintiff in this transaction to attend the January 18, 1979 hearing, at which full opportunity would be given to that broker to submit an offer to purchase the real estate involved. That letter also assured the plaintiff's broker that "the best offer as determined by price, terms and conditions will be accepted at the hearing and a Court order for authority to sell entered accordingly." At the January 18 hearing, a representative of the plaintiff submitted a written proposal to buy; this proposal included a price, which was "considerably higher" than the offer presented by Strawberry Hill, and certain conditions of purchase. Because the conditions of the proposal were not "entirely clear" and, therefore, were unacceptable to the defendants, the hearing was continued for two weeks to January 31, 1979, to permit further negotiations between the plaintiff and the defendants. The presiding probate judge disqualified himself from further participation and another probate judge was designated to act in the matter. Thereafter, the parties met on two separate occasions to negotiate the conditions of purchase and, as a result, it was agreed that a firm offer to buy, together with a substantial deposit, would be submitted to the Probate Court at the continued hearing.

The time of the continued hearing was assumed to be 11 a. m., the same hour as the original hearing, and this was positively confirmed by the plaintiff. Later, the acting judge advanced the hour to 9:30 a. m., as he had other commitments at the time the hearing was scheduled. The clerk was instructed to notify the parties concerned, but he notified only some. The plaintiff received no notice of the change in time. On January 30, 1979, the plaintiff's attorney informed the defendants of the contents of the offer to buy that would be submitted the next day. The defendant Kilpatrick suggested that the offer, to be firm and acceptable to the Probate Court, should come from the principal and not its attorney. On January 31, 1979, the acting judge, when informed that all parties were not present and that there was some question about notice, continued the hearing from 9:30 a. m. to 10 a. m. When the hearing was opened at 10 a. m., a representative of the plaintiff explained the delay of the plaintiff's offer and stated that a firm offer was on its way and would be arriving "momentarily." The defendant Kilpatrick tried to have the hearing postponed for a short time pending the arrival of the plaintiff's offer, but the acting judge refused to delay the hearing any longer. He proceeded to conclude that Strawberry Hill's proposal was the only one before the court and then approved that offer. The hearing closed immediately, and within several minutes, the plaintiff's agent arrived with its offer, executed by an officer of the corporation. The defendant Kilpatrick was unsuccessful in his attempt to have the judge return to the courtroom and discovered that he had left the building. Attorney Senie, who was prepared to present the offer, was fully authorized to do so on behalf of the plaintiff. No action was taken on the plaintiff's request for reconsideration, which was later presented to the acting judge.

On appeal the plaintiff claims that the trial court erred in concluding from the facts found that it was not "aggrieved," within the meaning of General Statutes § 45-288, by the decision of the Probate Court approving the sale. We agree with the plaintiff.

As noted above, under General Statutes § 45-288, an appeal may be taken from a decision of the Probate Court only by a person aggrieved by the decision or decree appealed from. The concept of standing, as presented 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." Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 484, 338 A.2d 497, 501 (1973); see Gaucher v. Estate of Camp, 167 Conn. 396, 400, 355 A.2d 303 (1974). A person who seeks to appeal from an order of the Probate Court must set forth in his motion for appeal (1) the interest of the appellant in the subject matter of the decree or order appealed from or in the estate; see General Statutes § 45-293; and (2) the adverse effect of the decree or order on that interest. Hartford Kosher Caterers, Inc. v. Gazda, supra, 482, 338 A.2d 497. "A grievance to one's feelings of propriety or sense of justice is not a grievance which gives a right of appeal. Norton's Appeal, 46 Conn. 527, 528. On the other hand, the claim that to be aggrieved a plaintiff must have a pecuniary interest is too narrow a test to apply to appeals from probate." Stanley v. Stanley, 175 Conn. 200, 202, 397 A.2d 101 (1978); see Gaucher v. Estate of Camp, supra, 401, 355 A.2d 303; Hartford Kosher Caterers, Inc. v. Gazda, supra, 484, 338 A.2d 497; see also 1 Locke & Kohn, Conn. Probate Practice § 188. Instead, the existence of aggrievement depends upon "whether there is a possibility, as distinguished from a certainty, that some legally protected interest which (an appellant) has in the estate has been adversely affected." O'Leary v. McGuinness, 140 Conn. 80, 83, 98 A.2d 660 (1953); see Gaucher v. Estate of Camp, supra, 401, 355 A.2d 303; Hartford Kosher Caterers, Inc. v. Gazda, supra, 486, 338 A.2d 497. Moreover, it must appear that the interest which is adversely affected is a direct interest in the subject matter of the decree from which the appeal is taken. Bridgeport v. Steiber, 143 Conn. 720, 722, 126 A.2d 823 (1956); Williams v. Houck, 143 Conn. 433, 438, 123 A.2d 177 (1956); Weidlich v. First National Bank & Trust Co., 139 Conn. 652, 656, 96 A.2d 547, cert. denied, 346 U.S. 826, 74 S.Ct. 45, 98 L.Ed. 351 (1953).

We must determine whether, under the facts found, the plaintiff had an interest in the proceedings below sufficient to confer upon it standing under General Statutes § 45-288. In Hartford Kosher Caterers, Inc. v. Gazda, supra, we held (p. 486) that a corporation that had bid on property of an estate and that was informed by the court that its offer would be approved but later was rejected by the court, had standing to appeal under § 45-288. We stated (pp. 485-86, 338 A.2d p. 502): "Hartford Kosher's status as the chosen potential purchaser under the (first) decree, while not the same as that of a party to a contract for the sale of land, does constitute an interest. This status and its attempted termination serve to distinguish this case from Kaskel v. Steinberg, 142 Conn. 379, 114 A.2d 853. If this status was terminated by the order of August 8, as Hartford Kosher pleaded, the result would constitute injury in fact sufficient to satisfy the requirements of aggrievement." As our holding in Hartford Kosher Caterers, Inc., clearly implied, the language of Kaskel v. Steinberg, supra, 384, 114 A.2d 853, that "(t)he only persons who are affected by an order approving the sale of property constituting an asset of an estate are those to whom the estate will be distributed, or creditors if the estate is insolvent," is far too narrow. While one who bids upon...