William Weeks’ Appeal from Probate

• Decision Date: 21 November 2017
• Docket Number: FSTCV156025831S
• Court: Connecticut Superior Court
• Parties: William WEEKS’ APPEAL FROM PROBATE[*]

William WEEKS’ APPEAL FROM PROBATE^[*]

No. FSTCV156025831S

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

November 21, 2017

UNPUBLISHED OPINION

OPINION

A. WILLIAM MOTTOLESE, JUDGE TRIAL REFEREE

In this probate appeal the plaintiff is a conserved person within the meaning of G.S. § 45a-644(h). However, the appeal is not brought in the name of Katrina Camera, the duly appointed conservator of the estate in that capacity, but is taken by the conserved person himself through his attorney.^[1] It is also noted that the conservator of the estate has not been made a party plaintiff or defendant, nor has she sought to intervene.

The complaint alleges that the Greenwich Probate Court acted erroneously and arbitrarily in granting the application of Eric Griffin (" Griffin") which sought compensation from the assets of the plaintiff’s estate in the amount of $20, 859.64. Griffin’s answer admits all allegations of the complaint but denies that the court granted his request for that sum. (Paragraph 8.) Curiously, he does not admit or deny the operative allegation (paragraph 9) that the decree was erroneous and arbitrary. Because Griffin has mounted a defense of the decree in his papers and argument, the court will attribute this omission to inadvertence or inexperience and will deem the allegation denied.^[2]

Pursuant to G.S. § 45a-186a the Probate Court transmitted to this court the record of the proceeding which consists of the following: 1) the summons and complaint; 2) Griffin’s application of March 16, 2015; 3) the finding and decree of the Probate Court of May 28, 2015 with attached certification; 4) the order of notice of hearing; 5) a letter from attorney Barbara F. Green; 6) a notice for stay with summons; 7) the transcript of hearing held April 28, 2015. None of the documents bear any letter or number designation.

The record as fleshed out at oral argument reveals that pursuant to a hearing held November 18, 2014 Griffin, with Probate Court approval, purchased from the plaintiff’s conserved estate a total of seventy-five motor vehicles consisting of thirty-eight motorcycles, eleven automobiles, twenty scooters, seven quad runners and two go-carts for the sum of $6, 375.^[3] in order to make the vehicles saleable after taking possession, Griffin needed to have ignition keys and certificates of title for each, acceptable to the Department of Motor Vehicles. However, many of the keys and titles were missing. After bringing this deficiency to the attention of the conservator of the estate and the court-appointed attorney Margenot, a search of the plaintiff’s home was conducted with the result that some but not all keys and titles needed to match up with the various vehicles were found. Consequently, Griffin, without prior approval of the Probate Court or the conservator of the estate, incurred expenses in producing the needed keys and titles for which he sought reimbursement in the amount of $20, 859.64. Griffin’s application was granted by the Probate Court on May 28, 2015 and this appeal followed.

The plaintiff’s claims of error in the decree of the Probate Court are as follows: 1) the testimony taken at the April 28 2015 hearing upon which the decree was based was not given under oath or affirmation as required by G.S. § 45a-645b, 2) the court did not apply the rules of evidence applicable to civil matters in the Superior Court as required by that statute; 3) the decree is based on " assurances" made by attorney Margenot to Griffin that such reimbursement would be made out of the plaintiff’s estate; 4) the plaintiff’s statutory right to counsel under G.S. § 45a-649a(a) was violated. These claims will be considered seriatim.

THE STANDARD OF REVIEW

" Public Act 07-116 eliminated the usual practice prior to 2007 under which appeals from the decisions rendered by the Probate Court were trials de novo. Pursuant to G.S. § § 45a-186(a)(2) and 45a-186b a new standard of review has been created under which " [t]he Superior Court shall affirm the decision of the Court of Probate unless the Superior Court finds the substantial rights of the person appealing have been prejudiced because the findings, inferences conclusions or decisions are: (1) In violation of the federal or state constitution or the general statutes, (2) in excess of the statutory authority of the Court of Probate, (3) made on unlawful procedure, (4) affected by other error of law (5) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record, or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." DeNunzio v DeNunzio, 320 Conn. 178, 190-91 (2016).

I. Testimony Not Under Oath Mandatory or Directory

Clearly, § 45a-645b commands that all testimony taken at hearings held pursuant to § 45a-644 to § 45a-667v, inclusive be given under oath or affinnation.^[4] Neither party has furnished any analysis of whether the word " shall" is mandatory or directory as used in this context. Nor does Griffin claim that the plaintiff has waived his rights under the statute. See Federal Deposit Insurance Corp. v. Hillcrest Associates, 233 Conn. 153, 173 (1995). Nevertheless, the court recognizes this as a threshold issue of statutory construction in an area where our appellate courts have not yet spoken.

In determining whether the word " shall" as used in a statute is mandatory or directory our Supreme Court has prescribed the following procedures for our trial courts. " Our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764 (1993); Iovieno v. Commissioner of Correction, 222 Conn. 254, 258 (1992); Chairman v. Freedom of Information Commission, 217 Conn. 193, 200 (1991). In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ..." (Citations omitted; internal quotation marks omitted.) State v. Metz, 230 Conn. 400, 409 (1994). " The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience ... If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words." (Internal quotation marks omitted.) Katz v. Commissioner of Revenue Services, 234 Conn. 614, 617 (1995), 1373 (1989). The usual rule, however, is that " ‘[t]he legislature’s use of the word ‘shall’ generally evidences an intent that the statute be interpreted as mandatory.’ Todd v. Glines, 217 Conn. 1, 8 (1991)" (alternate citations omitted) (quotation marks as in original). Stewart v. Tunxis Service Center, 237 Conn. 71, 76-78 (1996).

Consideration of these guidelines points inescapably to a legislative intent that the provision is mandatory. While it may be argued that the legislature intended to secure order and dispatch in these particular kinds of probate proceedings, it is obvious that the legislature intended to accomplish much more than that. Rather, the legislature deemed the manner in which a conserved person is treated when before a probate court to be a matter of substance.

In Falvey v. Zurolo, 130 Conn.App. 243 (2011), our Appellate Court determined that § 45a-650(h), which governs the appointment of conservators, is silent as to whether the probate court was required to conduct a hearing on the record when appointing a conservator. Nevertheless, the court concluded from its examination of the legislative history of Public Act 07-116 that one of its primary goals was " to promote transparency in probate proceedings, " achieve a measure of " accountability, " " change the culture of the probate courts" and change " the culture of informality in the probate system." Clearly, the Appellate Court viewed these new statutory requirements as substantive because they go to the " essence of the thing to be accomplished, " i.e. fair, due process-like treatment of persons whose physical or mental disability necessitates the institution of these proceedings.

An examination of the transcript of the hearing of April 28 2015 discloses that none of the testimony was taken under oath. Notwithstanding, the plaintiff states in filing # 127, which is not a part of the probate record, that at a hearing held November 18, 2014 where the Probate Court approved his purchase of the vehicles, the testimony was sworn and that the April 28, 2015 proceeding was but a continuation of the November 18, 2014 hearing.^[5] The issue is complicated by the fact that while the 2014 hearing was ostensibly on the record it was later determined that the recorder malfunctioned and therefore no record was made of that hearing. The plaintiff points specifically to the remarks of Judge Hopper made at the April 28, 2015 hearing which read as follows: Judge Hopper: " All right. So today is April 28, 2015, and we’re here in the matter of William Weeks on a request for a hearing that is dealing with a continuance that we had in the past on titles to certain vehicles and motorcycles and things and keys and expenses. But because we’re recording this because it’s a conservatorship, I’ve got to do some instructions." (Emphasis...