DAVID W. BURNELL, EXECUTOR (ESTATE OF DONALD B. BURNELL), ET AL.
RONALD CHORCHES, TRUSTEE, ET AL.
January 13, 2017
from Superior Court, judicial district of Danbury, Truglia,
Stephen L. Savarese, for the appellants (plaintiffs).
Michael S. Schenker, for the appellee (named defendant).
Sheldon, Keller and Prescott, Js.
plaintiffs, David W. Burnell, individually and as executor of
the estate of his father, Donald B. Burnell (decedent), and
Stephen Lawrence Savarese, the attorney for David W. Burnell
in his capacity as executor, appeal from the judgment of the
trial court dismissing this action for lack of subject matter
jurisdiction. The plaintiffs brought the action against the
defendant bankruptcy trustee Ronald Chorches as an appeal from
orders of the Probate Court for the district of Northern
Fairfield County stemming from a financial report filed by
Burnell in his administration of the decedent's estate.
The court granted the defendant's motion to dismiss for
lack of subject matter jurisdiction on the ground that the
appeal was untimely because it was not filed in the Superior
Court within thirty days of the mailing of the Probate
Court's decree, as required by General Statutes §
45a-186. We affirm the judgment of the trial court.
following factual and procedural history, as set forth by the
trial court, is relevant to the plaintiffs' claims on
appeal. ‘‘On December 11, 2014, the Court of
Probate for the Northern District of Fairfield County
(Probate Court) issued a notice of hearing for the estate of
[the decedent], which provided for a hearing to be held on
January 6, 2015. This notice was sent to all persons who had
an interest in the estate, including the plaintiffs, David
Burnell, individually and as executor of the decedent's
estate, and Stephen Savarese, attorney for Burnell as
executor. The notice scheduled a hearing ‘[u]pon the
petition for allowance of the final financial report of the
fiduciary and an order of distribution of said estate as per
petition on file more fully appears.' The hearing took
place as scheduled on January 6, 2015. At the hearing, the
plaintiffs appeared and were heard. The plaintiffs had
advance notice of the defendant's objections to the final
account, including his claims of breach of fiduciary duty and
payment of excessive counsel fees. The plaintiffs also had
advance notice of the Probate Court's intention to
address the issue of the defendant's standing . . . . No
objection was made by the plaintiffs as to the form of the
notice of the hearing prior to, during, or after the hearing;
nor did the plaintiffs file a motion for reconsideration,
modification, or revocation of the decree with the Probate
Court. The court also notes that the plaintiffs'
complaint does not claim any defect in the December 11, 2014
Probate Court issued a memorandum of decision, Egan,
J., on February 12, 2015, which was then mailed to all
interested parties on February 13, 2015. The affidavit filed
by Attorney Savarese in opposition to the defendant's
motion to dismiss indicates that the plaintiffs received an
actual copy of the Probate Court's decision on February
23, 2015. On March 13, 2015, the plaintiffs delivered the
original summons and complaint to a state marshal for service
of process. The marshal's return indicates that service
was made on the interested parties on March 16, 2015. The
summons and complaint commencing this appeal were thereafter
filed with the Superior Court on April 2, 2015.
defendant's argument is straightforward. The complaint in
this probate appeal was not filed with the Superior Court
within thirty days of the Probate Court mailing its decision
to the parties as required under § 45a-186. The timely
filing of a complaint with the Superior Court is a subject
matter jurisdictional prerequisite to commencement of a
probate appeal. Therefore, according to the defendant, this
court is without subject matter jurisdiction to hear this
appeal, and the motion to dismiss must be granted.
plaintiffs oppose the motion to dismiss on the following
grounds. First, the plaintiffs argue that they did not
receive sufficient notice of the January 6 hearing.
Therefore, instead of being bound by the thirty day
limitation of § 45-186 (a), the plaintiffs maintain that
they are entitled to rely on the twelve month limitation set
forth in General Statutes § 45a-187 and, accordingly,
the appeal has been timely commenced. Second, the plaintiffs
argue that even if the thirty day limitation applies, they
are entitled to the benefit of the savings provision of
General Statutes § 52-593a. The plaintiffs maintain that
because service of process in this action was delivered to a
proper officer within the thirty day appeal period, who then
served and returned it within thirty days thereafter, their
appeal is timely.'' (Footnotes omitted.)
trial court rejected the plaintiffs' arguments in
opposition to the defendant's motion, concluded that the
plaintiffs had failed to file their appeal of the Probate
Court's decree within thirty days of the mailing of the
decree, as required under § 45a-186, and thus dismissed
the plaintiffs' action for lack of subject matter
jurisdiction on the ground that it was not timely filed. This
appeal, the plaintiffs challenge the court's dismissal of
their action on the same grounds as they raised in the trial
court in opposition to the defendant's motion to dismiss.
The plaintiffs first claim that, because they did not receive
sufficient notice of the probate hearing, the thirty day time
limit for filing an appeal under § 45a-186 (a) did not
apply to their appeal, but, instead, that their appeal was
governed by the twelve month time period set forth in §
45a-187 (a). The plaintiffs also argue that, even if the
thirty day time limitation of §45a-186 (a) did apply to
their appeal, they complied with that statutory requirement
by delivering their appeal papers to the marshal within
thirty days of the date on which the Probate Court decree was
mailed to them, for service upon the defendants pursuant to
§ 52-593a. We are not persuaded.
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. . . . Whether an issue implicates
subject matter jurisdiction is a question of law over which
our review is plenary.'' (Citations ...