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WILLIAM P. GEREMIA ET AL. v. JOSEPH D.
GEREMIA ET AL.
(AC 36848)
Gruendel, Sheldon and West, Js.
Argued April 8—officially released September 15, 2015
(Appeal from Superior Court, judicial district of
Hartford, Schuman, J.)
Daniel H. Kennedy III, for the appellants (plaintiffs).
Christopher Kylin, for the appellees (defendants).
Opinion
GRUENDEL, J. The plaintiffs, William P. Geremia
and Valerie M. Geremia, appeal from the judgment of
the trial court granting the motion to dismiss filed by
the defendants, Joseph D. Geremia, Niki Geremia,
Douglas J. Geremia, Linda Geremia, and David A. Gere-
mia.1 The court concluded that it lacked subject matter
jurisdiction over the various causes of action alleged in
the plaintiffs’ complaint due to the doctrine of primary
jurisdiction. On appeal, the plaintiffs challenge the pro-
priety of that determination. We affirm in part and
reverse in part the judgment of the trial court.
The procedural posture of this case governs our reci-
tation of the facts underlying the appeal. ‘‘A motion to
dismiss tests, inter alia, whether, on the face of the
record, the court is without jurisdiction.’’ (Internal quo-
tation marks omitted.) Kawecki v. Saas, 132 Conn. App.
644, 648, 33 A.3d 778 (2011). ‘‘[L]ack of subject matter
jurisdiction may be found in any one of three instances:
(1) the complaint alone; (2) the complaint supple-
mented by undisputed facts evidenced in the record;
or (3) the complaint supplemented by undisputed facts
plus the court’s resolution of disputed facts. . . . When
a trial court decides a jurisdictional question raised by a
pretrial motion to dismiss on the basis of the complaint
alone, it must consider the allegations of the complaint
in their most favorable light. . . . In this regard, a court
must take the facts to be those alleged in the complaint,
including those facts necessarily implied from the alle-
gations, construing them in a manner most favorable
to the pleader. . . . In contrast, if the complaint is sup-
plemented by undisputed facts established by affidavits
submitted in support of the motion to dismiss . . . the
trial court, in determining the jurisdictional issue, may
consider these supplementary undisputed facts and
need not conclusively presume the validity of the allega-
tions of the complaint. . . . Rather, those allegations
are tempered by the light shed on them by the [supple-
mentary undisputed facts] . . . . If affidavits and/or
other evidence submitted in support of a defendant’s
motion to dismiss conclusively establish that jurisdic-
tion is lacking, and the plaintiff fails to undermine this
conclusion with counteraffidavits . . . or other evi-
dence, the trial court may dismiss the action without
further proceedings.’’2 (Citations omitted; emphasis
omitted; internal quotation marks omitted.) Conboy v.
State, 292 Conn. 642, 651–52, 974 A.2d 669 (2009).
The following facts and procedural history of this
acrimonious intrafamily dispute are relevant to this
appeal. On September 9, 2009, Margaret Geremia exe-
cuted a power of attorney naming her two sons, William
and Douglas, as her attorneys in fact. For more than ten
years, William had assisted Margaret with her financial
affairs and day-to-day needs. He continued to serve
as her primary caretaker after the power of attorney
was executed.
On September 24, 2010, William underwent a major
medical procedure that required hospitalization. While
William was recovering from that procedure, Margaret
suffered a series of mini-strokes, which impaired her
ability to live alone in her North Haven home. As a
result, Margaret moved into the home of Douglas and
his wife, Linda, in Wallingford. She continued to reside
at either that home or the home of her grandson,
Joseph,3 and his wife, Niki, until her death in Decem-
ber, 2012.
On October 23, 2010, Linda assumed control of Marga-
ret’s financial affairs at the behest of Douglas, who
suffers from dyslexia and is illiterate. Linda exercised
control of Margaret’s checkbook, from which she wrote
checks, made withdrawals and handled all banking
transactions on behalf of Margaret. Beginning on March
1, 2011, the plaintiffs allege, the defendants acted know-
ingly and wrongfully to financially benefit themselves
at the expense of Margaret and her estate, while con-
spiring to unduly influence her into believing that the
plaintiffs were appropriating her assets for their own
personal use. On March 15, 2011, Joseph and Niki unsuc-
cessfully attempted to have Margaret’s power of attor-
ney revoked. On that date, Margaret was brought to
multiple banks, where the vast bulk of her liquid assets
were withdrawn and deposited into accounts belonging
to Douglas and Linda. Soon thereafter, Douglas took
Margaret to meet with Attorney Andrew Knott, where
she then revoked her existing power of attorney. At
that time, Margaret was in her nineties and suffered
from dementia and a diminished capacity.
In response, William filed an application with the
Probate Court seeking an involuntary conservatorship
for Margaret. Following multiple hearings, the court in
September, 2011, decreed that Margaret was not compe-
tent to handle her own financial affairs. Aided by her
legal counsel, Margaret agreed to the appointment of
a conservator on her behalf. The court thus appointed
Attorney Johanna P. Fazzone as conservator of Marga-
ret’s person and estate. Fazzone soon resigned from
that role prior to taking control of any of Margaret’s
assets. In so doing, Fazzone advised the court that the
parties were making demands well beyond what was
represented to her by those parties prior to her appoint-
ment. The court accepted Fazzone’s resignation and
appointed Attorney Peter Boorman as a successor con-
servator.
Upon taking control of Margaret’s assets, Boorman
noted four separate transactions in which a total of
$15,000 had been withdrawn from her account after the
appointment of a conservator. When Boorman
demanded that Douglas and Linda return those funds,
they refused. Boorman thereafter petitioned the court
for permission to report the withdrawals to criminal
authorities for further investigation. At a May 22, 2012
hearing on that petition, Douglas and Linda admitted
that they had assisted Margaret in making the aforemen-
tioned withdrawals. They further apprised the court
that Margaret presently had $8928 stored in a bureau
drawer at their home. In response, the court suggested
that the parties ‘‘drive down right now’’ to secure those
funds. As the defendants’ attorney later stated, ‘‘every-
one agreed the money was going to go to the conserva-
tor’’ when the May 22, 2012 hearing concluded.
When Boorman attempted to retrieve the funds that
day in accordance with the court’s directive, he was
physically assaulted by Joseph, and police were called
to the home.4 By order dated June 21, 2012, the court
accepted Boorman’s resignation as conservator of Mar-
garet’s person and estate. Attorney Katrina Camera later
was appointed as a successor conservator.
Months earlier, the plaintiffs’ counsel had sent a letter
to the Probate Court, indicating that he ‘‘will be asking
the court to issue orders in regards to the items listed
below: [a] [t]he conversion and/or theft of monies from
[Margaret] to various family members in the approxi-
mate amount of $29,000. [b] [t]he removal of many items
of personal property belonging to [Margaret] by family
members from [Margaret’s] real property without per-
mission from this court and/or the conservator. [c] [t]he
removal of items of personal property from [Margaret’s]
real property which items belong to [William and Val-
erie]. [d] [t]he sale of [Margaret’s] real estate. [e] [t]he
need to remove [Margaret’s] checkbook from the con-
trol and possession of [Linda]. [f] [Margaret’s] life insur-
ance policies and the disposition of the cash value
removed from any life policy. [g] [w]hether or not credit
cards have been opened in [Margaret’s] name with the
assistance of any [family members and;] [h] [t]he estab-
lishment of a set meeting date and time for [William]
to visit with his mother, [Margaret], outside the pres-
ence of any other family members.’’
Appended to the operative complaint is the Probate
Court’s September 27, 2012 ruling thereon.5 In that writ-
ten decision, the court expressly rejected the plaintiffs’
challenge to certain financial transactions that tran-
spired prior to the appointment of the conservator. As
it stated: ‘‘The court breaks down the claim of [the
plaintiffs] to two time frames, one for transactions
occurring prior to the finding that a conservator was
to be appointed for Margaret, and one for transactions
occurring after the finding that a conservator was to
be appointed . . . . The court approaches the applica-
tion from this standpoint, as it believes the differing
circumstances require separate showings by a party
seeking to attack the transactions. Prior to the court
accepting the stipulation of the parties that a conserva-
tor should be appointed for Margaret . . . Margaret
had every right to spend her money as she saw fit, and
the court would require the party seeking to establish
probable cause to attack any transactions in this time
frame to prove at a heightened burden that the transac-
tion was accomplished using undue influence upon Mar-
garet or otherwise not the free act of [her]. The court
believes this claim is akin to a claim of undue influence
in a will contest. The proponent needs to proffer evi-
dence tending to show that the free will and indepen-
dence of Margaret was overcome by the control of
someone such that Margaret was constrained to do
what was against her will, unable to refuse and too
weak to resist.’’ The court concluded that the plaintiffs
had not satisfied that burden. Because Margaret ‘‘had
the right to expend her funds as she saw fit prior to
being conserved,’’ the court rejected the plaintiffs’ chal-
lenge to those transactions that transpired prior to the
September, 2011 appointment of a conservator.
Turning its attention to subsequent transactions, the
court noted that ‘‘by decree dated June 19, 2012, the
court found that Douglas and Linda had knowingly and
wrongfully assisted [Margaret] in withdrawing $22,000
from her account during a time period after the date
they both knew that a conservator had been appointed
for her.’’ (Emphasis in original.) After reviewing various
allegations of impropriety underlying the plaintiffs’ con-
version and theft claims, the court ultimately found that
‘‘additional withdrawals totaling $2500 should also be
found to be wrongful, reduced by a credit of $500 for
[Margaret’s] reasonable gifts, for a total claim of Marga-
ret’s estate against Douglas and Linda in the amount
of $24,000.’’ The court noted that the conservator pre-
viously had recovered the $8928 from the bureau drawer
and ‘‘an additional $7000 . . . from David Geremia, son
of Douglas and Linda, who was the recipient of funds
removed from [Margaret’s] account in this amount.’’
The court also ruled that Douglas and Linda were
‘‘entitled to reasonable compensation for housing Mar-
garet for the time period commencing’’ with the month
in which the court appointed a conservator therefor.
The court found that $400 per month ‘‘is reasonable as
it comports with both the belief of the conservator and
the testimony of Douglas. As this compensation should
commence during the month of September, 2011, thir-
teen months have passed since that time, resulting in
a total claim of $5200, which claim may be offset against
the claim of Margaret’s estate in the amount of $8072,
leaving a net claim in favor of Margaret’s estate in the
amount of $2872.’’ The court denied William’s petition
‘‘for the return of personal property belonging to Wil-
liam and/or Valerie . . . as being beyond the jurisdic-
tion of this court.’’ The court then denied William’s
petition ‘‘for the return of personal property belonging
to Margaret . . . without prejudice to the right of the
conservator to file such a petition if she believes such
a petition is warranted.’’ The plaintiffs did not appeal
from that decision to the Superior Court.6
Margaret died on December 6, 2012.7 The plaintiffs
commenced this civil action in the Superior Court one
month later. The operative complaint contains twelve
counts. Counts one and two allege that Douglas and
Linda, respectively, breached a fiduciary duty to Marga-
ret in handling her funds and assets. Count three alleges
that the defendants tortiously interfered with William’s
reasonable expectation of an inheritance. Count four
alleges conversion on the part of the defendants with
respect to (1) certain funds and personal property of
Margaret, and (2) certain personal property belonging
to the plaintiffs. Count five similarly alleges statutory
theft on the part of the defendants with respect to (1)
certain funds and personal property of Margaret, and
(2) certain personal property belonging to the plaintiffs.
Count six alleges slander per se against Douglas, count
seven alleges libel per se against Joseph, and count
eight alleges slander per se against Niki. Counts nine,
ten and eleven allege intentional infliction of emotional
distress by Douglas, Joseph, and Niki, respectively. In
their twelfth and final count, the plaintiffs advance a
claim of unjust enrichment against all defendants.
The first responsive pleading filed by the defendants
was a motion to dismiss alleging both improper venue
and forum non conveniens. The trial court denied that
motion. The defendants then proceeded to file six suc-
cessive motions to strike, all of which were denied. The
plaintiffs filed an amended complaint on October 16,
2013, and the defendants thereafter were defaulted for
failure to plead. The defendants later moved to set aside
that default, which the court denied without prejudice.
In its order, the court advised the defendants that ‘‘[s]aid
default can be set aside by the filing’’ of an answer to
the plaintiffs’ complaint, consistent with the strictures
of Practice Book § 17-32 (b). The defendants ultimately
filed their answer,8 at which time the plaintiffs withdrew
their pending motion for a judgment of default.
On December 13, 2013, the defendants filed a motion
to dismiss the plaintiffs’ action ‘‘[p]ursuant to [General]
Statutes § 54-345 (3) and . . . Practice Book §§ 10-30
and 10-31’’9 because the ‘‘[p]laintiffs in this case have
brought an action where the jurisdiction is properly
before the Probate Court of Connecticut, and which is
already before that court. Further, that court has
already ruled on several matters which have already
been brought before it, and the [p]laintiffs are estopped
from pursuing a second hearing of these matters under
the doctrine of collateral estoppel . . . and also by res
judicata . . . .’’10 (Emphasis omitted.) The plaintiffs
filed an opposition to that motion.
By memorandum of decision dated April 2, 2014, the
trial court concluded that it lacked subject matter juris-
diction over the plaintiffs’ action due to the doctrine
of primary jurisdiction. The court reasoned that ‘‘[t]he
gravamen of the present suit is the proper distribution
of the assets of [Margaret] between her sons and their
families. It thus goes to the heart of the matter currently
in Probate Court. Allowing this suit to continue would
interfere with the orderly process of administrative
adjudication and judicial review in which a reviewing
court will have the benefit of the agency’s findings and
conclusions. . . . Thus, the plaintiffs should litigate
this matter in Probate Court, if they have not already
done so, and, if dissatisfied, file an appeal to the Supe-
rior Court.’’ (Citation omitted; internal quotation
marks omitted.)
The plaintiffs subsequently filed a motion seeking
reargument. Appended as an exhibit to that motion was
the Probate Court’s January 30, 2014 decree, which
states in relevant part: ‘‘On December 20, 2013, Douglas
and [Linda] . . . filed a petition with this court seeking
an order directing the administratrix to return personal
possessions to the family of [Margaret]. An objection
was filed by [the plaintiffs]. Prior to taking testimony,
the administratrix . . . described a process she had
utilized in an unsuccessful attempt to determine claims
to ownership of items which were in storage from [Mar-
garet’s] home. It was further disclosed that a civil action
has been pending in the Superior Court at Hartford in
which ownership of certain disputed personal property,
including the assets held by the administratrix, was
being contested. And it is ordered and decreed that
. . . because there is a prior pending matter concerning
the same issue of ownership of items which are either
under the control of the administratrix or allegedly
should be under her control, the court declines to act
in the manner requested. Should the Superior Court
enter an order determining which items belong to the
estate, this court may then consider acting to order
distribution of the estate’s assets.’’ The plaintiffs thus
emphasized in their motion to reargue that the Probate
Court ‘‘is deferring to the Superior Court’’ with regard to
the property contested in the present action. (Emphasis
omitted.) The court denied that motion, and this
appeal followed.
I
At the outset, we note what is not in dispute. In their
appellate brief, the plaintiffs aver that Joseph and Niki
‘‘filed a chapter 13 bankruptcy petition in 2013 . . . .
On October 23, 2013, [they] received a discharge under
§ 727 of title 11 of the Bankruptcy Code.’’ For that
reason, the plaintiffs apprised this court that they ‘‘make
no claims on appeal’’ against Joseph and Niki. Accord-
ingly, we do not consider the propriety of the court’s
dismissal of counts seven, eight, ten and eleven of the
operative complaint, which counts named either Joseph
or Niki exclusively as the defendant.
II
In dismissing the plaintiffs’ action, the court con-
cluded that it lacked subject matter jurisdiction due to
the primary jurisdiction doctrine. On appeal, the plain-
tiffs maintain that, because their complaint alleged vari-
ous torts over which the Probate Court does not possess
exclusive jurisdiction, that determination was
improper. Our review of the plaintiffs’ claim is plenary.
See Heussner v. Hayes, 289 Conn. 795, 802, 961 A.2d
365 (2008).
A
We first address the argument advanced by the defen-
dants that the court granted their motion to dismiss ‘‘as
a matter of judicial economy.’’ The defendants appear
to misunderstand the concept of primary jurisdiction
in the context of Probate Court matters.
Generally speaking, the primary jurisdiction doctrine
arises in the context of administrative proceedings. As
our Supreme Court has explained, ‘‘the primary jurisdic-
tion doctrine . . . is triggered when courts and
administrative agencies have concurrent subject mat-
ter jurisdiction11 over a case. . . . Intended to pro-
mote proper relationships between the courts and
administrative agencies charged with particular regu-
latory duties, the primary jurisdiction doctrine applies
where a claim is originally cognizable in the courts, and
comes into play whenever enforcement of the claim
requires the resolution of issues which, under a regula-
tory scheme, have been placed within the special com-
petence of an administrative body; in such a case the
judicial process is suspended pending referral of such
issues to the administrative body for its views. . . .
[T]he rationale underlying primary jurisdiction is in sub-
stance much the same as that which supports exhaus-
tion. . . . The doctrine of primary jurisdiction, like
exhaustion, is grounded in a policy of fostering an
orderly process of administrative adjudication and judi-
cial review in which a reviewing court will have the
benefit of the agency’s findings and conclusions.’’ (Cita-
tion omitted; emphasis added; footnote added; internal
quotation marks omitted.) Financial Consulting, LLC
v. Commissioner of Insurance, 315 Conn. 196, 222–23
n.23, 105 A.3d 210 (2014); see also Mazzola v. Southern
New England Telephone Co., 169 Conn. 344, 348, 363
A.2d 170 (1975) (‘‘[t]he doctrine of primary jurisdiction
is a rule of judicial administration created by court
decision in order to promote proper relationships
between the courts and administrative agencies
charged with particular regulatory duties’’ [internal quo-
tation marks omitted]). We know of no authority, nor
have the defendants furnished any, in which our appel-
late courts have applied that doctrine to Probate
Court proceedings.
Rather, the term ‘‘primary jurisdiction’’ possesses a
distinct meaning in the context of Probate Court pro-
ceedings. Connecticut law long has demarcated the dis-
tinction between the jurisdiction of our probate and
superior courts. General Statutes § 51-164s provides in
relevant part that ‘‘[t]he Superior Court shall be the sole
court of original jurisdiction for all causes of action,
except such actions over which the courts of probate
have original jurisdiction, as provided by statute. . . .’’
Almost two centuries ago, our Supreme Court recog-
nized that the General Statutes vest ‘‘in the court of
probate, the whole power of settling estates . . . .’’
Beach v. Norton, 9 Conn. 182, 196 (1832). Since that
time, our courts have adhered to the ‘‘undoubted propo-
sition’’ that ‘‘[t]he Superior Court cannot exercise a
primary jurisdiction which by the statute is reposed
in the Courts of Probate.’’ (Internal quotation marks
omitted.) Hall v. Dichello Distributors, Inc., 6 Conn.
App. 530, 534–35, 506 A.2d 1054, cert. denied, 200 Conn.
807, 512 A.2d 230 (1986). Thus, unlike the primary juris-
diction doctrine that arises in the administrative con-
text, the concept of primary jurisdiction in the probate
context is not a judicially crafted tool of adjudicative
preference applicable to situations in which an adminis-
trative agency and the Superior Court possess concur-
rent jurisdiction. In the probate context, primary
jurisdiction instead involves a statutory question as to
whether jurisdiction over the subject matter rests exclu-
sively with the Probate Court.
‘‘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. . . . As a court of limited jurisdiction, it may
act only when the facts and circumstances exist upon
which the legislature has conditioned its exercise of
power. . . . Such a court is without jurisdiction to act
unless it does so under the precise circumstances and
in the manner particularly prescribed by the enabling
legislation.’’ (Citations omitted; internal quotation
marks omitted.) Heussner v. Hayes, supra, 289 Conn.
802–803; see also Palmer v. Hartford National Bank &
Trust Co., 160 Conn. 415, 428, 279 A.2d 726 (1971) (‘‘[t]he
court of probate has no common-law jurisdiction’’); Pot-
ter v. Alcorn, 140 Conn. 96, 100, 99 A.2d 97 (1953) (‘‘[i]t
is, of course, elementary that courts of probate are
strictly statutory tribunals’’); Slocum v. Wheeler, 1 Conn.
429, 438–39 (1816) (‘‘[i]n all cases of courts of limited
jurisdiction, their proceedings must be in matters within
their jurisdiction, or they are void’’). By contrast, ‘‘ ‘[t]he
Superior Court of this state as a court of law is a court
of general jurisdiction. It has jurisdiction of all matters
expressly committed to it and of all others cognizable
by any law court of which the exclusive jurisdiction is
not given to some other court. The fact that no other
court has exclusive jurisdiction in any matter is suffi-
cient to give the Superior Court jurisdiction over that
matter.’ State ex rel. Morris v. Bulkeley, 61 Conn. 287,
374, 23 A. 186 [1892].’’ LaBella v. LaBella, 134 Conn.
312, 316, 57 A.2d 627 (1948); accord In re Joshua S.,
260 Conn. 182, 215, 796 A.2d 1141 (2002) (holding that
‘‘in the absence of legislation bestowing upon the Pro-
bate Courts exclusive jurisdiction over the appointment
of a statutory parent, jurisdiction over the appointment
of a statutory parent necessarily was conferred upon
the Superior Court’’).12 It therefore is incumbent on a
party moving to dismiss a complaint on primary jurisdic-
tion grounds to demonstrate that the causes of action
contained therein are matters entrusted exclusively to
the Probate Court.
B
In moving to dismiss the plaintiffs’ action for lack
of subject matter jurisdiction, the defendants did not
identify any statutory basis indicating that the Probate
Court was vested with primary jurisdiction over the
substance of the plaintiffs’ complaint. In granting that
motion, the Superior Court cited to General Statutes
§ 45a-98 in support of the general proposition that the
Probate Court ‘‘has exclusive subject matter jurisdic-
tion over matters involving the validity of wills and the
settlement of estates . . . .’’ (Internal quotation marks
omitted.) We therefore focus our attention on that stat-
ute in considering the plaintiffs’ claim, mindful that
‘‘[o]ur legislature has consistently drafted legislation to
state expressly when a court has exclusive jurisdiction.’’
(Internal quotation marks omitted.) In re Joshua S.,
supra, 260 Conn. 214.
Section 45a-98 (a) provides: ‘‘Courts of probate in
their respective districts shall have the power to (1)
grant administration of intestate estates of persons who
have died domiciled in their districts and of intestate
estates of persons not domiciled in this state which
may be granted as provided by section 45a-303; (2)
admit wills to probate of persons who have died domi-
ciled in their districts or of nondomiciliaries whose
wills may be proved in their districts as provided in
section 45a-287; (3) except as provided in section 45a-
98a or as limited by an applicable statute of limitations,
determine title or rights of possession and use in and
to any real, tangible or intangible property that consti-
tutes, or may constitute, all or part of any trust, any
decedent’s estate, or any estate under control of a
guardian or conservator, which trust or estate is other-
wise subject to the jurisdiction of the Probate Court,
including the rights and obligations of any beneficiary
of the trust or estate and including the rights and obliga-
tions of any joint tenant with respect to survivorship
property; (4) except as provided in section 45a-98a,
construe the meaning and effect of any will or trust
agreement if a construction is required in connection
with the administration or distribution of a trust or
estate otherwise subject to the jurisdiction of the Pro-
bate Court, or, with respect to an inter vivos trust, if
that trust is or could be subject to jurisdiction of the
court for an accounting pursuant to section 45a-175,
provided such an accounting need not be required; (5)
except as provided in section 45a-98a, apply the doc-
trine of cy pres or approximation; (6) to the extent
provided for in section 45a-175, call executors, adminis-
trators, trustees, guardians, conservators, persons
appointed to sell the land of minors, and attorneys-in-
fact acting under powers of attorney created in accor-
dance with section 45a-562, to account concerning the
estates entrusted to their charge; and (7) make any
lawful orders or decrees to carry into effect the power
and jurisdiction conferred upon them by the laws of
this state.’’
Distilled to its essence, the plaintiffs’ claim is that
the legislature has not entrusted the actions alleged
in their complaint to the exclusive jurisdiction of the
Probate Court. We agree.
i
We first tackle the proverbial low-hanging fruit.
Counts three, six and nine allege tortious interference
with the expectation of an inheritance, slander per se,
and intentional infliction of emotional distress.13 Nei-
ther § 45a-98 nor any other provision of the General
Statutes vests the Probate Court with jurisdiction,
exclusive or otherwise, over those actions sounding in
tort. For that reason, the court improperly dismissed
those counts.
ii
We also do not agree that the plaintiffs’ claims alleg-
ing conversion and statutory theft of certain funds and
personal property of Margaret are the exclusive domain
of the Probate Court because they pertain to the prop-
erty of her estate, as the defendants argued in their
memorandum of law in support of their motion to dis-
miss. It is true that § 45a-98 (a) plainly confers on the
Probate Court ‘‘the power to . . . (3) determine title
or rights of possession and use in and to any real,
tangible or intangible property that constitutes, or may
constitute, all or part of any trust, any decedent’s estate,
or any estate under control of a guardian or conservator,
which trust or estate is otherwise subject to the jurisdic-
tion of the Probate Court, including the rights and obli-
gations of any beneficiary of the trust or estate and
including the rights and obligations of any joint tenant
with respect to survivorship property . . . .’’ Neverthe-
less, the exercise of that power is not entrusted solely
with the Probate Court. Section 45a-98 (b) expressly
provides in relevant part that ‘‘[t]he jurisdiction of
courts of probate to determine title or rights or to con-
strue instruments . . . pursuant to subsection (a) of
this section is concurrent with the jurisdiction of the
Superior Court and does not affect the power of the
Superior Court as a court of general jurisdiction.’’ As
this court has observed, § 45a-98 (b) ‘‘is a declaration
that the Probate Court and the Superior Court are to
have concurrent jurisdiction over matters involving title
and rights to property.’’14 Gallant v. Cavallaro, 50 Conn.
App. 132, 135–36, 717 A.2d 283, cert. denied, 247 Conn.
936, 722 A.2d 1216 (1998), cert. denied, 528 U.S. 1005,
120 S. Ct. 500, 145 L. Ed. 2d 386 (1999). Accordingly,
while the Probate Court possesses jurisdiction to deter-
mine title or rights of possession and use regarding ‘‘any
real, tangible or intangible property that constitutes, or
may constitute’’ part of Margaret’s estate, that jurisdic-
tion is not exclusive.15
It bears emphasis that, as a court of limited jurisdic-
tion, the Probate Court ‘‘is without jurisdiction to act
unless it does so under the precise circumstances and
in the manner particularly prescribed by the enabling
legislation.’’ (Internal quotation marks omitted.) Heus-
sner v. Hayes, supra, 289 Conn. 803. The plain language
of the enabling legislation at issue, § 45a-98 (a) (3),
affords the Probate Court jurisdiction to ‘‘determine
title or rights of possession and use in and to any real,
tangible or intangible property . . . .’’ (Emphasis
added.) See also Bender v. Bender, 292 Conn. 696, 716,
975 A.2d 636 (2009) (§ 45a-98 [a] [3] vests ‘‘the Probate
Court with concurrent jurisdiction with the Superior
Court to try title to real and personal property in which
a claim is made that said property is an asset of a trust,
a decedent’s estate, or any estate under the control of
a conservator’’ [emphasis added]). Neither § 45a-98 (a)
(3) nor any other statute confers jurisdiction on the
Probate Court to adjudicate disputes regarding the col-
lection of such property. Rather, ‘‘suits . . . to collect
assets or enforce contract rights of the decedent are
not brought in the Probate Court but in the Superior
Court . . . . Historically, only the Superior Court had
jurisdiction to direct the transfer to the beneficial owner
of assets standing in the name of the deceased . . . .
[A] suit by an heir to set aside a fraudulent sale made
by the administrator, may properly be brought in the
Superior Court. In [that] case, the Probate Court might
afford some relief by requiring an accounting from the
administrator, but could not furnish as complete relief
as a court of equity might provide by restoring the status
quo.’’ (Emphasis in original; footnotes omitted.) R. Fol-
som & G. Wilhelm, Probate Jurisdiction and Procedure
in Connecticut (2d Ed. 2014) § 2:23, pp. 2-67 and 2-68,
and cases cited therein. As this state’s highest court
observed many years ago: ‘‘But it is urged, that the
question made in the superior court respecting the right
to a transfer of [certain property], should have been
made before the court of probate. On what ground can
this be urged? Can a court of probate order a transfer
of property, by the heir or the administrator? Could it
order a transfer of [the property]? If so, how could it
enforce the order? No such power is possessed by a
court of probate; nor is it believed, that it has ever
been exercised.’’ Cowles v. Whitman, 10 Conn. 120, 125
(1834). The defendants have offered no authority to
the contrary.
Also relevant to the issue before us is the scope of
relief sought by the plaintiffs in the present case. With
respect to the conversion claims, they requested mone-
tary damages, statutory interest, punitive damages,
costs, and a decree that ‘‘all of [Margaret’s] personal
property and monies misappropriated by the defen-
dants be held in constructive trust for the benefit of
[her estate].’’16 With respect to their statutory theft
claims, the plaintiffs sought identical relief, save for
the additional request of treble damages pursuant to
General Statutes § 52-564. Proper recourse for a party
seeking such relief is to the Superior Court. As our
Supreme Court observed in Ramsdell v. Union Trust
Co., 202 Conn. 57, 73, 519 A.2d 1185 (1987), after noting
the limited jurisdiction of the Probate Court, ‘‘claims
for money damages and equitable relief against the
defendant should be brought in a court of general,
rather than limited, jurisdiction.’’ Indeed, ‘‘[a] court of
probate is unable to award damages. . . . It would,
therefore, be inappropriate to allow a court to entertain
an action in which it is without the power to grant the
relief requested.’’ (Citation omitted.) Palmer v. Hart-
ford National Bank & Trust Co., supra, 160 Conn. 430.
In light of the foregoing, we conclude that the trial
court improperly determined that the Probate Court
possessed jurisdiction over the plaintiffs’ conversion
and statutory theft claims regarding property allegedly
belonging to Margaret.
iii
In addition, we note that the Probate Court, in its
September 27, 2012 decision, denied the plaintiffs’ peti-
tion ‘‘for the return of personal property belonging to
[the plaintiffs] as being beyond the jurisdiction of this
court.’’ No appeal was taken from that decision, and the
defendants in this appeal do not dispute the propriety of
that determination. We further are aware of no statutory
authority under which a Probate Court is empowered
to entertain such claims. The Superior Court, therefore,
improperly dismissed the claims pertaining to the
alleged misappropriation of certain items of personal
property belonging to the plaintiffs.
iv
We next consider the first two counts of the plaintiffs’
complaint, which allege breach of fiduciary duty on the
part of Douglas and Linda, respectively. More specifi-
cally, those counts allege in relevant part that Douglas
and Linda ‘‘[w]hile acting in a fiduciary capacity . . .
failed to act with the utmost good faith, fair dealing,
and loyalty with respect to [Margaret’s] funds and assets
and [thus] breached said fiduciary duty . . . .’’ In their
prayer for relief, the plaintiffs sought, as to both counts
one and two of their complaint, monetary damages,
statutory interest, ‘‘common-law punitive damages,’’
costs, and a decree that ‘‘all property misappropriated
by the defendant[s] be held in constructive trust for the
benefit of [her estate].’’
Although the General Statutes vest jurisdiction in the
Probate Court ‘‘to the extent provided for in section
45a-175, [to] call executors, administrators, trustees,
guardians, conservators, persons appointed to sell the
land of minors, and attorneys-in-fact acting under pow-
ers of attorney created in accordance with section 45a-
562, to account concerning the estates entrusted to their
charge’’; General Statutes § 45a-98 (a) (6); the jurisdic-
tion of the Probate Court to order an accounting by
those specified fiduciaries pursuant to General Statutes
§§ 45a-98 (a) (6) and 45a-175 is not exclusive. ‘‘[W]hile
the language of [§] 45a-175 clearly bestows jurisdiction
upon [P]robate [C]ourts to handle accounts . . . noth-
ing in the language of this section evidences any inten-
tion to abrogate the jurisdiction of the [S]uperior
[C]ourt over actions of accounting. . . . Therefore, it is
clear that [t]he Probate Courts and the Superior Courts
exercise concurrent jurisdiction over accountings by
persons acting under powers of attorney.’’ (Citation
omitted; internal quotation marks omitted.) In the Mat-
ter of Bachand, 306 Conn. 37, 59–60 n.9, 49 A.3d 166
(2012); accord Dettenborn v. Hartford-National
Bank & Trust Co., 121 Conn. 388, 391–92, 185 A. 82
(1936) (‘‘[t]he jurisdiction of Courts of Probate to pass
upon the accounts of a testamentary trustee is not,
however, exclusive, and courts of general jurisdiction
may entertain actions against trustees for breaches of
their duty, the jurisdiction of the two courts being con-
current’’).
In addition, the Supreme Court has observed that
‘‘the allowance by a probate court of the account of a
testamentary trustee does not constitute an adjudica-
tion of any matter not apparent on the face of the
account nor bar a beneficiary from a subsequent action
in the Superior Court to recover damages for a breach
of trust by a trustee.’’ Carten v. Carten, 153 Conn. 603,
615, 219 A.2d 711 (1966); see also In re Probate Appeal
of Cadle Co., 129 Conn. App. 814, 827, 21 A.3d 572, cert.
denied, 302 Conn. 914, 27 A.3d 373 (2011). We perceive
little reason why that logic should not apply equally in
the present case. To the extent that Douglas and Linda
provided something resembling an accounting to the
Probate Court regarding their financial transactions
involving Margaret’s funds and assets, nothing in the
General Statutes or our decisional law precludes an
action in the Superior Court to recover damages arising
from the alleged breach of fiduciary duty with
respect thereto.
Perhaps more significant is the fact that counts one
and two of the plaintiffs’ complaint do not seek an
accounting from Douglas and Linda. Rather, the plain-
tiffs seek the imposition of monetary damages and equi-
table relief due not only to their financial dealings with
respect to Margaret’s ‘‘funds and assets’’ but also their
exercise of undue influence over her. Because the plain-
tiffs’ claims of breach of fiduciary duty go well beyond
merely requesting an accounting and seek equitable and
monetary relief, including, inter alia, punitive damages,
those common-law claims ‘‘must be brought in a court
of general jurisdiction’’ because ‘‘[t]he Probate Court
[does] not have jurisdiction to adjudicate or award dam-
ages’’ therefor. Gaynor v. Payne, 261 Conn. 585, 599,
804 A.2d 170 (2002); see also Ramsdell v. Union Trust
Co., supra, 202 Conn. 73 (‘‘claims for money damages
and equitable relief against the defendant should be
brought in a court of general, rather than limited, juris-
diction’’); Palmer v. Hartford National Bank & Trust
Co., supra, 160 Conn. 430 (inappropriate to allow Pro-
bate Court ‘‘to entertain an action in which it is without
the power to grant the relief requested’’). The trial court,
therefore, improperly determined that the Probate
Court possessed exclusive jurisdiction over the breach
of fiduciary duty counts of the plaintiffs’ complaint.
v
We likewise conclude that the defendants have not
established, as they must, that the legislature has vested
the Probate Court with jurisdiction over the plaintiffs’
unjust enrichment claim. That ‘‘common-law’’ doctrine
provides ‘‘restitution, or the payment of money, when
justice so requires.’’ (Internal quotation marks omitted.)
300 State, LLC v. Hanafin, 140 Conn. App. 327, 328
n.1, 59 A.3d 287 (2013). Our probate courts have no
common-law jurisdiction; Palmer v. Hartford National
Bank & Trust Co., supra, 160 Conn. 428; and the defen-
dants have not provided any authority indicating that
the Probate Court may entertain such claims. Contra R.
Folsom & G. Wilhelm, supra, § 2:45, p. 2-117 (‘‘Probate
Courts may not . . . enforce restitution or the restora-
tion of property inequitably retained’’); see also Palmer
v. Hartford National Bank & Trust Co., supra, 428
(‘‘[t]he fact that the right [to recover certain expenses]
is not found within the statute, but rather, in general
equitable doctrines, tends to substantiate the . . .
claim that the Probate Court . . . cannot order the pay-
ment of such expenses’’). Furthermore, as with the
breach of fiduciary duty, conversion and statutory theft
counts, the operative complaint sought both monetary
damages and equitable relief in the form of a construc-
tive trust as recourse for the alleged unjust enrichment.
Such requests for relief more properly belong before a
court of general, rather than limited, jurisdiction.
Gaynor v. Payne, supra, 261 Conn. 599; Ramsdell v.
Union Trust Co., supra, 202 Conn. 73.
It nevertheless remains that, given the procedural
posture of this case, the critical inquiry is not whether
the Probate Courts possess jurisdiction over a given
matter, but whether the legislature has entrusted the
Probate Courts with exclusive jurisdiction over the mat-
ter. In considering the jurisdiction of our courts of pro-
bate, Connecticut’s appellate courts have emphasized
that the legislature ‘‘has consistently drafted legislation
to state expressly when a court has exclusive jurisdic-
tion.’’ (Internal quotation marks omitted.) In re Joshua
S., supra, 260 Conn. 214; Sender v. Sender, 56 Conn.
App. 492, 498, 743 A.2d 1149 (2000). The defendants
have not identified any statutory grant of jurisdiction,
exclusive or otherwise, over the plaintiffs’ allegation of
unjust enrichment. Indeed, our decisional law is replete
with instances in which the Superior Court has exer-
cised jurisdiction over such claims. See, e.g., Garrigus
v. Viarengo, 112 Conn. App. 655, 674, 963 A.2d 1065
(2009) (claim that executor of estate was unjustly
enriched by ‘‘her wrongful acts by failing to justly com-
pensate [the] estate or its heirs’’).
vi
We therefore conclude that the defendants have not
met their burden in demonstrating that the legislature
has bestowed upon the Probate Court exclusive juris-
diction over the plaintiffs’ breach of fiduciary duty, tor-
tious interference with the expectation of an
inheritance, conversion, statutory theft, slander per se,
intentional infliction of emotional distress, and unjust
enrichment claims, as set forth in the operative com-
plaint. Accordingly, their dismissal on primary jurisdic-
tion grounds was improper.
III
That determination does not end our inquiry. As this
court has observed, ‘‘[w]e have long held that this court
may affirm a trial court’s proper decision, although it
may have been founded on a wrong reason.’’ State v.
Aaron L., 79 Conn. App. 397, 416, 830 A.2d 776 (2003),
aff’d, 272 Conn. 798, 865 A.2d 1135 (2005); accord Flagg
Energy Development Corp. v. General Motors Corp.,
244 Conn. 126, 151, 709 A.2d 1075 (1998) (appellate
court not required to reverse trial court ruling that
reached correct result but for wrong reason). A court
confronted with a motion to dismiss for lack of subject
matter jurisdiction is obligated to scrutinize the com-
plaint to determine whether such jurisdiction is lacking.
Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239
Conn. 93, 99, 680 A.2d 1321 (1996); see also Stauton v.
Planning & Zoning Commission, 271 Conn. 152, 157,
856 A.2d 400 (2004) (possible absence of subject matter
jurisdiction must be addressed and decided whenever
raised). Our review of the operative complaint reveals
that the plaintiffs lack standing to pursue certain claims
contained therein.17
‘‘[S]tanding is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
of action, or a legal or equitable right, title or interest
in the subject matter of the controversy. . . . Never-
theless, [s]tanding is not a technical rule intended to
keep aggrieved parties out of court; nor is it a test
of substantive rights. Rather it is a practical concept
designed to ensure that courts and parties are not vexed
by suits brought to vindicate nonjusticiable interests
and that judicial decisions which may affect the rights
of others are forged in hot controversy, with each view
fairly and vigorously represented. . . . These two
objectives are ordinarily held to have been met when
a complainant makes a colorable claim of direct injury
he has suffered or is likely to suffer, in an individual
or representative capacity. Such a personal stake in the
outcome of the controversy . . . provides the requisite
assurance of concrete adverseness and diligent advo-
cacy. . . . Standing [however] requires no more than
a colorable claim of injury . . . .’’ (Citations omitted;
internal quotation marks omitted.) Kortner v. Martise,
312 Conn. 1, 10, 91 A.3d 412 (2014); see also Broadnax
v. New Haven, 270 Conn. 133, 156, 851 A.2d 1113 (2004)
(‘‘only those individuals who have suffered a direct
injury would have standing’’ [emphasis omitted]).
The causes of action contained in the operative com-
plaint fall into two classes—those alleging direct injury
to the plaintiffs as a result of the defendants’ conduct,
and those alleging that the defendants’ conduct
adversely impacted Margaret’s estate, to the detriment
of the plaintiffs as its beneficiaries. We address each
in turn.
A
Counts three, six and nine allege tortious interference
with the expectation of an inheritance, slander per se,
and intentional infliction of emotional distress. Those
counts plainly allege that the plaintiffs suffered direct
injuries as a result of the conduct of the defendants.
Likewise, those portions of counts four and five that
pertain to the defendants’ appropriation of personal
property belonging to the plaintiffs similarly contain
the requisite allegations of direct injury to them.
Because those allegations amount to a colorable claim
of direct injury, we conclude that the plaintiffs possess
standing to maintain those causes of action.
B
We reach a different result with respect to those
causes of action alleging harm to Margaret’s estate.
Those causes of action pertain exclusively to personal
property allegedly belonging thereto; the complaint
contains no allegation regarding any real property.
Under Connecticut law, ‘‘legal title to personal property
passes to the executor or administrator, and such prop-
erty is to be used for the payment of debts and the
remainder distributed to the heirs’’ under a will. (Inter-
nal quotation marks omitted.) Dinan v. Patten, 317
Conn. 185, 208, 116 A.3d 275 (2015). As our Supreme
Court has observed, ‘‘[t]he rule of law is well estab-
lished, that the legal title to all personal property of the
deceased, vests in his legal representatives. They can
dispose of it at pleasure, being responsible for the faith-
ful execution of the trust; and can institute actions at
law for the recovery of debts, as well as for the recovery
of personal property.’’ Beecher v. Buckingham, 18
Conn. 110, 120–21 (1846).
Accordingly, as a general rule, ‘‘[t]he proper suit,
upon a cause of action arising in favor of . . . the dece-
dent during [his or her] lifetime, is in the name of the
fiduciary rather than of the heirs or other beneficiaries
of the estate. . . . Actions designed to recover person-
alty belonging to the estate or for its use, conversion,
or injury are brought by the fiduciary rather than by the
beneficiaries.’’ G. Wilhelm et al., Settlement of Estates in
Connecticut (3d Ed. 2014) §§ 8:288 and 8:289, pp. 8-105
and 8-106; see also Kosiorek v. Smigelski, 138 Conn.
App. 695, 706, 54 A.3d 564 (2012) (‘‘[i]t is axiomatic that
probate fiduciaries may commence legal action in their
representative capacity’’), cert. denied, 308 Conn. 901,
60 A.3d 287 (2013); Naier v. Beckenstein, 131 Conn.
App. 638, 653 n.13, 27 A.3d 104 (‘‘[i]t is of course true
that a representative of an estate may pursue a cause
of action . . . to pursue claims of the deceased’’), cert.
denied, 303 Conn. 910, 32 A.3d 963 (2011); Silver v.
Holtman, 114 Conn. App. 438, 443, 970 A.2d 740 (2009)
(executrix ‘‘has standing in her representative capacity
to assert the rights of the estate’’ and was ‘‘the only
person who has standing to bring these claims because
of her representative capacity’’); 31 Am. Jur. 2d 746,
Executors and Administrators § 1093 (2012) (‘‘the
exclusive right to bring actions in behalf of an estate
. . . is in the legal representative of the estate; the heirs
have no standing to maintain such an action’’ [footnote
omitted]); 26B C.J.S. 417, Descent and Distribution
§ 107 (2011) (‘‘[w]here a personal representative has
been appointed for an estate, an individual heir gener-
ally does not have the right to pursue an action for [the]
benefit of the estate unless the personal representative
fails to act on the claim’’ [footnote omitted]). The power
of administrators or executors to litigate on behalf of
an estate is codified in General Statutes § 45a-234 (18),18
which provides in relevant part that they may ‘‘sue on
or defend, abandon, or otherwise deal with and settle
claims in favor of or against the estate . . . .’’19
In turn, the administrator or executor,20 as the desig-
nated fiduciary of the estate, ‘‘is the representative of
all beneficiaries under [a] decedent’s will.’’ Gaynor v.
Payne, supra, 261 Conn. 591. The administrator or exec-
utor thus ‘‘has a fiduciary duty to bargain for the rights
of all decedent’s beneficiaries and to turn over to them
their appropriate share of any proceeds. The personal
representative has a mandatory duty to seek out and
collect every asset and to collect all debts due the estate,
including debts due from heirs.’’ (Footnotes omitted.)
31 Am. Jur. 2d, supra, § 369, p. 273; see also Ramsdell
v. Union Trust Co., supra, 202 Conn. 66 (if estate has
‘‘a viable claim’’ against third party, administrator or
executor ‘‘has a fiduciary duty to bring such a claim on
the estate’s behalf’’); Satti v. Rago, 186 Conn. 360, 367,
441 A.2d 615 (1982) (noting that ‘‘the relationship of
the defendant administrator to the plaintiff heir was
fiduciary in character’’ and emphasizing that adminis-
trator owed heir ‘‘a duty of equity and fair dealing in
respect to any transaction of mutual concern’’); O’Con-
nor v. Chiascione, 130 Conn. 304, 307, 33 A.2d 336
(1943) (administrator ‘‘is a fiduciary for all persons
interested in the estate’’); Butler v. Sisson, 49 Conn.
580, 588 (1882) (‘‘the law . . . presumes that an admin-
istrator will do his duty and gather in all the assets that
he is able’’); G. Wilhelm et al., supra, § 7:36, p. 7-24
(administrator has duty ‘‘to maintain an attitude of strict
impartiality as between the beneficiaries and so govern
her or his conduct to protect the legitimate interests
of all’’). With particular respect to an estate’s claims
against a beneficiary, ‘‘an heir ordinarily cannot main-
tain an action against a coheir to recover his or her
share of the estate. As a general rule, only the adminis-
trator can maintain an action against a coheir to recover
personal property belonging to the estate or for dam-
ages for conversion thereof.’’ (Footnote omitted.) 26B
C.J.S., supra, § 104, p. 415; cf. Garrigus v. Viarengo,
supra, 112 Conn. App. 657–61 (administrator of estate
prevailed in civil action alleging fraud, undue influence,
statutory theft and unjust enrichment against defendant
who was ‘‘one of the nieces named in the wills’’). The
plaintiffs have furnished this court with no authority
indicating otherwise.
Nevertheless, an exception exists to the general rule
precluding civil actions by heirs and beneficiaries on
behalf of an estate. ‘‘[W]here the executor or administra-
tor has been guilty of fraud or collusion with the party
to be sued, or . . . where the interests of the personal
representative are antagonistic to those of the heirs
or distributees, the heirs or distributees may maintain
actions relating to the personalty of the estate in their
own names. Similarly, when the legal representative
has failed or refused to act, the heir may maintain an
action to recover assets for the benefit of the estate.’’
(Footnotes omitted.) 31 Am. Jur. 2d, supra, § 1131, p.
764; see also Kiley v. Lubelsky, 315 F. Supp. 1025, 1028
(D. S.C. 1970) (‘‘[i]t is contemplated that the administra-
tor, properly appointed, will enforce any action which
will discharge or carry out his trust responsibility, and
if he fails, or tries to defeat the trust, the beneficiary
can enforce his own cause of action acting as temporary
representative’’); Schaefer v. Schaefer, 89 Wis. 2d 323,
329, 278 N.W.2d 276 (App. 1979) (‘‘an heir may be per-
mitted to maintain an action to recover assets for the
benefit of the estate in her own name when the executor
or legal representative has failed or refused to act’’);
Trotter v. Mutual Reserve Fund Life Assn., 9 S.D. 596,
600, 70 N.W. 843 (1897) (‘‘[w]hen an administrator
refuses to bring action upon a claim due the estate,
heirs, creditors and others interested in its collection
should have an adequate remedy’’); 26B C.J.S., supra,
§ 107, p. 417 (‘‘the heirs or distributees of the estate
. . . may maintain actions to enforce or protect their
interests in the estate . . . in case of fraud, collusion,
or refusal to sue on the part of the administrator’’).
The General Statutes likewise contemplate such an
exception to the general rule that the right to bring
actions on behalf of an estate belongs to the legal repre-
sentative. Section 45a-234 (18) vests in an administrator
or executor the exclusive power ‘‘[t]o compromise,
adjust, arbitrate, sue on or defend, abandon, or other-
wise deal with and settle claims in favor or against the
estate . . . as the fiduciary shall deem advisable
. . . .’’ Yet that statute further provides that ‘‘the fidu-
ciary’s decision shall be conclusive between the fidu-
ciary and the beneficiaries of the estate . . . in the
absence of fraud, bad faith or gross negligence of the
fiduciary. . . .’’ (Emphasis added.) General Statutes
§ 45a-234 (18). Our trial courts have applied such an
exception in determining whether a beneficiary pos-
sessed standing to maintain an action alleging injury
to an estate, albeit without specific reference to that
statute. See Dickman v. Generis, 48 Conn. Supp. 380,
383–85, 845 A.2d 488 (2004); Hart v. Hart, Superior
Court, judicial district of Windham at Putnam, Docket
No. CV-14-6007918 (August 28, 2014); Wright v. Wright,
Superior Court, judicial district of New Haven, Docket
No. CV-05-4000024 (May 27, 2005). The question, then,
is whether that limited exception is applicable in the
present case.
The first two counts of the operative complaint allege
a breach of fiduciary duty on the part of Douglas and
Linda, respectively. Significantly, those counts do not
allege that Douglas or Linda breached a fiduciary duty
owed to William. Instead, they aver that Douglas and
Linda breached a fiduciary duty owed to the ‘‘funds and
assets’’ of the estate, to the detriment of William. The
fourth and fifth counts for conversion and statutory
theft allege, in part, that the defendants misappropri-
ated ‘‘monies existing in various accounts, jewelry and
personal property’’ belonging to Margaret. The plaintiffs
thus allege that ‘‘[t]he estate of [Margaret] is entitled
to possession of all personal property and monies
owned by [Margaret] which were wrongfully disposed
of by the defendants.’’ Last, the plaintiffs’ unjust enrich-
ment count alleges in relevant part that the defendants
‘‘by taking and/or accepting gifts, personal property and
monies belonging to [Margaret] or [her] estate . . .
have all benefited from their own misconduct,’’ and that
they ‘‘did not pay [Margaret or her estate] for any of
the benefits they received.’’ As a result, the plaintiffs
allege that ‘‘[t]he defendants have all been unjustly
enriched by virtue of their failure to pay [Margaret or
her estate] for property owned by her or by her estate.’’
The count further asserts that this conduct injured the
estate, alleging that ‘‘the estate of [Margaret] contains
considerably less assets than would otherwise be the
case because of the conduct of the defendants.’’ The
plaintiffs’ claim of injury is derivative thereof, alleging
that ‘‘[s]ince the estate at death is considerably smaller
than it should be, said conduct of the defendants has
caused great harm and detriment to the plaintiff [Wil-
liam].’’ In sum, none of the aforementioned counts
allege a colorable claim of direct injury to the plaintiffs.
Rather, those counts allege direct injury to Marga-
ret’s estate.
We recognize the general rule that the exclusive right
to bring actions on behalf of an estate belongs to the
legal representative of the estate, and that heirs or bene-
ficiaries lack standing to maintain such an action. At
the same time, we also are mindful of the limited excep-
tion to that general rule, as codified in § 45a-234 (18).
This case does not implicate that exception. Absent
from the operative complaint is any allegation of fraud,
bad faith, or gross negligence on the part of the admin-
istratrix of Margaret’s estate. Contra Dickman v. Gene-
ris, supra, 48 Conn. Supp. 384 (emphasizing that
operative complaint ‘‘is replete with claims of fraud
and collusion and instances where the interests of the
administrator . . . are antagonistic to those of the
heirs or distributees’’); Hart v. Hart, supra, Superior
Court, Docket No. CV-14-6007918 (complaint contained
allegations of undue influence, fraud, and partiality on
part of executor); see also Glover v. Landes, 530 S.W.2d
910, 911 (Tex. App. 1975) (‘‘[i]n our case there is no
contention that the executor has failed to act, that he
has an interest adverse to any of the devisees or that
he is proceeding in behalf of persons having adverse
interests’’) (writ ref’d n.r.e. March 3 1976). Moreover,
the record before us reveals that the administratrix has
taken action on behalf of the estate against the
defendants.21
We conclude that the counts alleging breach of fidu-
ciary duty and unjust enrichment, as well as those alleg-
ing conversion and statutory theft with respect to
property belonging to Margaret, all plead injuries deriv-
ative of those allegedly sustained by her estate. They
do not amount to colorable claims of direct injury to
the plaintiffs. Accordingly, the plaintiffs lack standing
to maintain those actions before the Superior Court.
The court properly dismissed those counts for lack of
subject matter jurisdiction.
The judgment is reversed only as to the dismissal of
counts three, six and nine of the operative complaint,
as well as counts four and five insofar as they pertain
to the alleged misappropriation of property belonging
to the plaintiffs, and the case is remanded for further
proceedings in accordance with law. The judgment is
affirmed in all other respects.
In this opinion the other judges concurred.
1
For clarity, and mindful of their shared last name, we refer to the parties
individually by their first names in this opinion. We further note that, subse-
quent to the commencement of this action, the plaintiffs successfully moved
to cite in the Estate of Margaret Geremia as an additional party, despite the
fact that such an estate is not a legal entity. See Gilpatric v. Hartford, 98
Conn. 471, 476–80, 120 A. 317 (1923); 31 Am. Jur. 2d 741, Executors and
Administrators § 1085 (2012) (estates ‘‘are not natural or artificial persons,
and they lack legal capacity to sue or be sued’’). Rather, the proper party
to act on behalf thereof is the executor or administrator, ‘‘who individually
transacts the business of the estate.’’ G. Wilhelm et al., Settlement of Estates
in Connecticut (3d Ed. 2014) § 7:4, p. 7-14. At oral argument before this
court, the plaintiffs’ counsel acknowledged that at no time did the plaintiffs
move to cite in the administrator of Margaret Geremia’s estate.
2
In the present case, the operative complaint—the plaintiffs’ October 16,
2013 first amended complaint—was accompanied by five exhibits, three of
which were written rulings by the Probate Court dated September 13, 2011,
June 21, 2012, and September 27, 2012. The only additional document
appended to the defendants’ motion to dismiss was a four paragraph letter
from the plaintiffs’ counsel to the Probate Court dated March 23, 2012.
3
Joseph is Douglas’ son.
4
As the Probate Court recounted in its June 21, 2012 decision: ‘‘After the
May 22, 2012 hearing, the parties proceeded to travel to Douglas’ house in
Wallingford . . . . Douglas proceeded to walk from the living room to a
hallway leading to Margaret’s bedroom. Boorman . . . went to follow Doug-
las down the hallway, but [Joseph] raced to get to the hallway first to prevent
[him] from entering the hallway. Joseph admits to blocking Boorman from
proceeding down the hallway . . . . Boorman testified that Joseph moved
to one side, leaving enough room for him to pass by him and proceed down
the hallway. However, as soon as Joseph realized what Boorman was doing,
Joseph moved quickly in the other direction to pinch Boorman against the
wall. Boorman then pushed Joseph off of him and against the opposite wall.
. . . [Joseph] looked at him and he had ‘the eyes of a caged animal.’
‘‘There is not much dispute about what happened thereafter. Joseph came
at Boorman with repeated punches with closed fists. The police report
confirms that Joseph admitted . . . that he responded to Boorman’s push
by punching him in the face with a closed fist. . . . Boorman yelled for
someone to call the police, and Niki Geremia did so. . . . Boorman was
able to get a hold of both of Joseph’s arms and prevent him from throwing
any more punches. Boorman stated that Joseph tried to unsuccessfully kick
him in the groin. . . .
‘‘While all this was going on, Douglas had continued to Margaret’s bed-
room, retrieved the two envelopes containing the cash, and proceeded to
the living room and put them on the coffee table. Boorman saw the envelopes
and, as matters had calmed down somewhat, he released Joseph’s right arm
and used his left arm to pick up the two envelopes . . . . Joseph was
slightly behind Boorman, and he used his free hand to punch Boorman near
the left eye. Because of the way the men were situated, Boorman did not
see the punch coming and was unable to defend against it, and he was hit
squarely with a significant amount of force.’’ (Citation omitted.) Boorman
then proceed outside to wait for the police, where he counted the money
and confirmed that the envelopes contained $8928.
5
In its decision, the Probate Court stated that the plaintiffs’ petition ‘‘was
a companion application to the application of the conservator of the estate
for the return of funds wrongfully removed from the estate.’’ The record
before us contains no further reference to, or documentation of, that applica-
tion by the conservator.
6
Pursuant to General Statutes § 45a-186 (a), ‘‘[e]xcept as provided in
sections 45a-187 and 45a-188, any person aggrieved by any order, denial or
decree of a Probate Court in any matter, unless otherwise specially provided
by law, may, not later than forty-five days after the mailing of an order,
denial or decree for a matter heard under any provision of section 45a-593,
45a-594, 45a-595 or 45a-597, sections 45a-644 to 45a-677, inclusive, or sections
45a-690 to 45a-705, inclusive, and not later than thirty days after mailing of
an order, denial or decree for any other matter in a Probate Court, appeal
therefrom to the Superior Court. . . .’’
7
Following Margaret’s passing, Camera was appointed administratrix of
her estate.
8
Although the operative complaint contains 131 paragraphs of factual
allegations, the defendants’ answer to those allegations stated simply that
‘‘[p]ursuant to Practice Book § 17-32 (b) and the order of the court . . .
the defendants in this case deny all twelve counts in their entirety.’’
9
We presume that the defendants’ motion contains a scrivener’s error,
as § 54-345 does not exist. General Statutes § 51-345 specifies proper venue
for civil actions in this state.
10
The present case does not implicate the prior pending action doctrine,
which ‘‘permits the court to dismiss a second case that raises issues currently
pending before the court.’’ Cumberland Farms, Inc. v. Groton, 247 Conn.
196, 216, 719 A.2d 465 (1998). Although ‘‘[t]he prior pending action doctrine
is properly raised via a motion to dismiss before the trial court,’’ it ‘‘does
not truly implicate subject matter jurisdiction [and] may not, therefore, as
is true in the case of classic subject matter jurisdiction, always be raised
at any time.’’ (Citation omitted; internal quotation marks omitted.) In re
Jessica M., 71 Conn. App. 417, 427, 802 A.2d 197 (2002); see also Connecticut
National Bank v. L & R Realty, 46 Conn. App. 443, 445 n.1, 699 A.2d 297
(1997) (prior pending doctrine ‘‘may not be raised at any time’’ but, rather,
must be raised by timely motion to dismiss), rev’d in part on other grounds,
246 Conn. 1, 715 A.2d 748 (1998). The defendants filed their motion to
dismiss more than eleven months after the commencement of this civil
action and did not raise the prior pending doctrine at that time. Although
that doctrine potentially operates in instances in which an action is com-
menced in the Superior Court while a probate matter is pending; see In re
Jessica M., supra, 427; its applicability is not properly before us in this
appeal, nor has any party so argued.
11
‘‘Concurrent jurisdiction has been said to mean the jurisdiction of several
different tribunals, each authorized to deal with the same subject-matter at
the choice of the suitor.’’ (Internal quotation marks omitted.) Second Injury
Fund v. Lupachino, 45 Conn. App. 324, 348, 695 A.2d 1072 (1997).
12
In In re Joshua S., our Supreme Court, in discussing ‘‘the jurisdictional
limitations of the Probate Court,’’ noted that ‘‘there are three types of actions
in which the Superior Court does not exercise original jurisdiction: those
involving the custody of a child not the issue of the marriage involved in a
divorce, settlement of an executor’s or administrator’s account, and the
question of due execution of a will.’’ (Internal quotation marks omitted.) In
re Joshua S., supra, 260 Conn. 216; see also R. Folsom & G. Wilhelm, Probate
Jurisdiction and Procedure in Connecticut (2d Ed. 2014) § 2:2, p. 2-15.
With respect to the settlement of estates, ‘‘[i]t has been held specifically
that no court other than a Probate Court may decide questions of due
execution of a will, order the sale of real estate in a decedent’s estate,
compel an executor to collect assets, fix an allowance for the support of
the family pending the settlement of the estate, determine the compensation
of the executor or administrator, settle an administration account, determine
the persons entitled to funds coming into the hands of the administrator in
the course of administration, ascertain distributees, order distribution, and
partition the property among the distributees in order to complete the
distribution. It also has been held that only a Probate Court may determine
the solvency or insolvency of an estate, or the order of priority of claims
or the percentages available to creditors in each class. . . . [T]he Probate
Court is the only court competent to fix the bond of a life tenant under a
will or appoint a trustee for such life tenant, or decide whether to order
assets of a nonresident decedent remitted to the domiciliary executive or
trustee.’’ (Footnotes omitted.) Id., § 2:23, pp. 2-63 and 2-64.
13
As the sole question before this court is whether the Superior Court
properly determined that it lacked subject matter jurisdiction, we express
no opinion on the legal sufficiency of the causes of action set forth in the
plaintiffs’ complaint. See Caltabiano v. Phillips, 23 Conn. App. 258, 265,
580 A.2d 67 (1990) (‘‘[a] motion to dismiss does not test the sufficiency of
a cause of action and should not be granted on other than jurisdictional
grounds’’); see also Egri v. Foisie, 83 Conn. App. 243, 247, 848 A.2d 1266
(‘‘[t]here is a significant difference between asserting that a plaintiff cannot
state a cause of action and asserting that a plaintiff has not stated a cause
of action, and therein lies the distinction between the motion to dismiss
and the motion to strike’’ [emphasis in original]), cert. denied, 271 Conn.
931, 859 A.2d 930 (2004).
14
The jurisdiction conferred upon our courts of probate to determine title
or rights of possession to such property also is constrained by the limitation
set forth in General Statutes § 45a-98a (a) (1). That statute provides in
relevant part that the Probate Court shall have jurisdiction under § 45a-98
(a) (3) ‘‘only if . . . the matter in dispute is not pending in another court
of competent jurisdiction . . . .’’ (Emphasis added.) Section 45a-98a (a) (1)
evinces in unambiguous fashion a legislative intent to confer concurrent
jurisdiction over such matters. It further operates to preclude our courts
of probate from exercising jurisdiction over such matters that already are
pending before the Superior Court.
15
We recognize that, in the spring of 2012, the plaintiffs filed a request
with the Probate Court to ‘‘issue orders’’ regarding the defendants’ allegedly
wrongful appropriation of funds and personal property belonging to Marga-
ret, and that the Probate Court acted on that request in its September 27,
2012 decision. We further note that the defendants, as an alternate ground
of dismissal, argued in their motion to dismiss that the Superior Court lacked
subject matter jurisdiction over the plaintiffs’ complaint due to the doctrines
of res judicata and collateral estoppel. That proposition is untenable. Admit-
tedly, our Supreme Court has recognized that ‘‘Probate Court decrees . . .
are final judgments for the purpose of the doctrine of res judicata.’’ Gaynor
v. Payne, 261 Conn. 585, 596, 804 A.2d 170 (2002). Nevertheless, ‘‘[r]es
judicata does not provide the basis for a judgment of dismissal; it is a special
defense that is considered after any jurisdictional thresholds are passed.’’
Labbe v. Pension Commission, 229 Conn. 801, 816, 643 A.2d 1268 (1994);
see also State v. T.D., 286 Conn. 353, 360 n.6, 944 A.2d 288 (2008) (‘‘the
doctrine of collateral estoppel does not implicate a court’s subject matter
jurisdiction [and even] when applicable . . .does not mandate dismissal of
a case’’ [citations omitted]); Zizka v. Water Pollution Control Authority,
195 Conn. 682, 687, 490 A.2d 509 (1985) (claim of res judicata does not
implicate subject matter jurisdiction of court). Whether those doctrines of
preclusion operate to bar any of the plaintiffs’ claims before the Superior
Court, therefore, is not a proper basis on which to predicate a motion to
dismiss for lack of subject matter jurisdiction. Those doctrines properly are
raised by motion for summary judgment. See Jackson v. R. G. Whipple, Inc.,
225 Conn. 705, 712, 627 A.2d 374 (1993); Zizka v. Water Pollution Control
Authority, supra, 687.
16
A constructive trust is an equitable remedy imposed to prevent unjust
enrichment. Cohen v. Cohen, 182 Conn. 193, 203, 438 A.2d 55 (1980). ‘‘[A]
constructive trust arises . . . against one who, by . . . abuse of confidence
. . . either has obtained or holds the legal right to property which he ought
not, in equity and good conscience, hold and enjoy.’’ (Internal quotation
marks omitted.) Wendell Corp. Trustee v. Thurston, 239 Conn. 109, 113, 680
A.2d 1314 (1996).
17
In moving to dismiss this action, the defendants did not raise any issue
with respect to the plaintiffs’ standing. Mindful that a question of subject
matter jurisdiction ‘‘may be raised at any time, including sua sponte invoca-
tion by a reviewing court’’; DePietro v. Dept. of Public Safety, 126 Conn.
App. 414, 422 n.3, 11 A.3d 1149, cert. granted on other grounds, 300 Conn.
932, 17 A.3d 69 (2011) (appeal withdrawn June 26, 2012); see also Smith v.
Snyder, 267 Conn. 456, 460 n.5, 839 A.2d 589 (2004) (‘‘[w]e raise this issue
of standing sua sponte as it implicates our subject matter jurisdiction’’); we
ordered the parties to file supplemental briefs on the question of standing
following oral argument before this court.
18
The Uniform Probate Code likewise provides in relevant part that ‘‘a
personal representative, acting reasonably for the benefit of the interested
persons, may properly . . . (22) prosecute or defend claims, or proceedings
in any jurisdiction for the protection of the estate . . . .’’ Unif. Probate
Code § 3-715.
19
In rejecting an attempt to intervene by certain heirs seeking to appeal
an adverse ruling on a claim defended by the administrator of the estate in
question, the Colorado Court of Appeals articulated a principal rationale
underlying the general rule that the right to bring and defend actions on
behalf of an estate belongs to the legal representative of the estate, rather
than heirs or beneficiaries thereto. As that court stated: ‘‘[T]here are substan-
tial problems with basing the right to intervene upon various questions as
to how or in what manner a law suit should be prosecuted. When the law
created a mechanism whereby one person as a representative of a group
could conduct litigation, the purpose was the efficient, speedy, and orderly
determination of rights which were held in common. For the courts to grant
intervention to any member of a represented class who disagrees with the
decisions of the representative, solely on that basis, would in our view
defeat the entire purpose of representative litigation. A personal representa-
tive, under such a rule, would always be in danger of losing the ability to
represent and act for the estate and might well find himself relegated to a
position of looking on as the affairs of the estate became hopelessly entan-
gled. It seems hardly likely that the General Assembly when it clothed the
personal representative with far reaching affirmative powers, could have
intended for his position to be so fragile.’’ In the Matter of the Estate of
Scott, 40 Colo. App. 343, 346, 577 P.2d 311 (1978); see also State ex rel.
Palmer v. District Court, 190 Mont. 185, 189, 619 P.2d 1201 (1980) (‘‘any
other rule would promote a multitude of suits by heirs, resulting in hopeless
confusion with respect to the prosecution of an action’’).
20
‘‘[B]oth executors and administrators substantially derive their authority
from the same source—the court of probate. The former are designated by
the testator—the latter by statute. Both must receive the approbation of
the court, before they are duly qualified to act.’’ Beecher v. Buckingham,
supra, 18 Conn. 121–22.
21
As recounted in the September 27, 2012 decision of the Probate Court,
Camera filed an application ‘‘for the return of funds wrongfully removed
from the estate,’’ which led the Probate Court to conclude that defendants
Douglas and Linda were liable for $24,000 in ‘‘wrongful’’ withdrawals from
the assets of Margaret’s estate.