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Connery v. Gieske

Supreme Court of Connecticut

October 11, 2016

W. HUDSON CONNERY, JR.
v.
ELIZABETH MAY GIESKE, EXECUTRIX (ESTATE OF ANNMAY MOORE), ET AL.

          Argued March 31, 2016

          Steven Berglass, with whom, on the brief, was Rosie Miller, for the appellant (plaintiff).

          William H. Clendenen, Jr., with whom were Maura A. Mastrony and, on the brief, Kevin C. Shea, for the appellees (named defendant et al.).

          Peter D. Clark, for the appellees (defendant Fletcher Williams Moore et al.).

          Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js. [*]

          OPINION

          PALMER, J.

         The plaintiff, W. Hudson Connery, Jr., appeals from the judgment of the trial court, which granted the motion of the named defendant, Elizabeth May Gieske, executrix of the estate of the decedent, Ann May Moore, [1] to dismiss the plaintiff's action. The defendant sought dismissal on the ground that the Probate Court lacked jurisdiction over the parties' dispute because it was barred by the applicable statute of limitations. See General Statutes § 45a-186 (a).[2] The plaintiff, who had been married to the decedent, claims that the trial court improperly treated the present action as an appeal from orders of the Probate Court when, in fact, it is an action to vindicate the plaintiff's right to remove probate matters to the Superior Court pursuant to General Statutes § 45a-98a.[3] The plaintiff further maintains that, even if the trial court correctly determined that the present action is an appeal, it incorrectly determined that it was untimely under § 45a-186 (a). We conclude that the trial court correctly determined that the present action is an appeal. We further conclude, however, that the trial court incorrectly determined that it was barred by the statute of limitations. The record reveals, rather, that the appeal was filed prematurely. Accordingly, we affirm the judgment of the trial court, albeit on a different ground.

         The following facts and procedural history are relevant to our resolution of the plaintiff's claims. Following the decedent's death on December 14, 2011, the defendant was named as the executrix of her estate. An application to admit the decedent's will to probate was filed on January 5, 2012. At that time, the plaintiff filed a written waiver of his right to receive notice of the hearing, stating that he had examined the will and had no objection to it. On June 4, 2012, however, the plaintiff filed a notice of claim in which he contested the legality and validity of the will, asserting that the decedent ‘‘died intestate . . . .''[4] The plaintiff further claimed, ‘‘in the alternative, [that] in the event it is determined that [the decedent] did not die intestate, '' he intended to elect his spousal share under the will pursuant to General Statutes § 45a-436.

         On or about October 22, 2012, the plaintiff filed a second notice of claim in which he sought reimbursement of ‘‘monies advanced to [the decedent] prior to [their] marriage, in the amount of not less than [$275, 000].'' The defendant rejected the second claim as untimely, and the plaintiff filed a timely application for a hearing on the rejected claim pursuant to General Statutes (Rev. to 2011) § 45a-364 (a). Thereafter, on or about November 1, 2012, the defendant filed motions to require the plaintiff to surrender certain property belonging to the estate and to disclose information pertaining to the plaintiff's and the decedent's joint assets. On or about February 6, 2013, the plaintiff filed a motion to compel the defendant to disclose information about estate assets. On or about February 26, 2013, the defendant filed a notice of deposition of the plaintiff, in response to which the plaintiff sought a protective order from the Probate Court. On or about February 27, 2013, the beneficiaries under the decedent's will, namely, Fletcher Williams Moore, John Parker Moore and Gwendolyn Calla Moore Gelb, filed an objection to the plaintiff's June 4, 2012 notice of claim challenging the legality and validity of the will and giving notice of his intention to claim a spousal share in the event that his challenge to the will is unsuccessful. The beneficiaries contended that the plaintiff had waived his right to the spousal share by challenging the legality and validity of the will. A Probate Court hearing on all of these matters was scheduled for March 6, 2013.

         Prior to that hearing, however, the plaintiff filed an affidavit pursuant to § 45a-98a (a), in which he indicated his intention to remove the case to the Superior Court for a jury trial. The defendant objected to the affidavit, arguing that none of the matters before the Probate Court was eligible for removal because none involved a dispute over title to or the right to possession of estate property. At the March 6, 2013 hearing, the Probate Court examined each of the disputed matters to determine whether they were eligible for removal. The Probate Court concluded that only the defendant's motions to require the plaintiff to surrender personal property and to disclose information about joint assets were eligible for removal because they involved a dispute over title to or possession of estate property. As for the remaining matters, the Probate Court determined that they were not eligible for removal because they did not involve such a dispute. For reasons that are not clear from the record, written copies of the Probate Court's March 6, 2013 orders were not mailed to the parties until September 27, 2015, two and one-half years after the hearing. On October 22, 2015, the plaintiff filed a timely appeal from those orders, which is presently pending in the Superior Court. Connery v. Gieske, Superior Court, judicial district of Waterbury, Docket No. UWY-CV-15-6029343-S.

         On April 15, 2013, the plaintiff filed a complaint in the Superior Court, in which he alleged, inter alia, that the Probate Court lacked jurisdiction over the matters decided at the March 6, 2013 hearing because the plaintiff previously had filed an affidavit pursuant to § 45a-98a (a) indicating his intention to remove those matters to the Superior Court. The plaintiff also alleged that he was appealing from the Probate Court's March 6, 2013 orders pursuant to § 45a-186 (a). Subsequently, the defendant filed a motion to dismiss the complaint, arguing that it was untimely and that, consequently, the trial court lacked jurisdiction over it. Specifically, the defendant argued that, under § 45a-186 (a), the plaintiff had thirty days to appeal from the Probate Court's March 6, 2013 orders, which he failed to do.

         In response, the plaintiff argued that the present action was not an appeal but an action challenging the Probate Court's retention of jurisdiction over the case after the plaintiff filed an affidavit pursuant to § 45a-98a (a). The plaintiff also argued that, even if the present action was an appeal, it was not barred by the statute of limitations because the Probate Court had not yet mailed copies of the March 6, 2013 orders to the parties, which, under § 45a-186 (a), is required to trigger the thirty day limitations period.

         The trial court rejected the plaintiff's arguments, concluding that the ‘‘the retention of jurisdiction [by] the Probate Court [over] various claims and the refusal to release them for jury trial in the Superior Court pursuant to . . . [§] 45a-98a was within the jurisdiction of the Probate Court. As a result, an appeal pursuant to [General Statutes §§] 45a-186 and [45a-187] was the appropriate way to challenge [that] decision . . . .'' (Footnote omitted.) The trial court further concluded that the appeal was untimely because it was not filed within thirty days of the date on which the parties received actual notice of the Probate Court's orders. In reaching this conclusion, the trial court rejected the plaintiff's assertion that, under the plain and unambiguous language of § 45a-186 (a), the time for filing an appeal does not begin to run until the Probate Court mails to the parties copies of the orders from which the appeal is being taken. In the trial court's view, that contention was untenable because, ‘‘taken to its logical conclusion, [it] would [mean] . . . that there is no limit to the time in which an oral order or decision of the Probate Court could be appealed. An equally unpalatable conclusion is that such orders cannot be appealed because they are not authorized by the applicable statute.'' ‘‘Either interpretation, '' the trial court concluded, ‘‘is repugnant'' to the well established principle favoring the speedy settlement of estates.

         In so concluding, the trial court also noted an apparent conflict between a provision in § 45a-186 (a) indicating that the appeals period commences with the mailing of the Probate Court's order or decree and General Statutes § 51-53, [5] which requires court clerks to immediately notify a party, in writing, of any decision of a court unless that party was present when the decision was rendered, in which case such notice is not required. Although the trial court acknowledged that, effective July 1, 2013, the Probate Court is required to ‘‘memorialize each oral ruling in writing''; Probate Court Rules § 3.3; it did not consider that rule to be relevant to its interpretation of § 45a-186 because that provision went into effect several months after the oral orders in the present case were rendered. The trial court reasoned that, because written notification of the orders was not required on March 6, 2013, ...


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