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W. HUDSON CONNERY, JR. v. ELIZABETH MAY
GIESKE, EXECUTRIX (ESTATE OF ANN
MAY MOORE), ET AL.
(SC 19563)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.*
Argued March 31—officially released October 11, 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.).
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 Pro-
bate Court lacked jurisdiction over the parties’ dispute
because it was barred by the applicable statute of limita-
tions. 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 Gen-
eral 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 deter-
mined 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 rele-
vant to our resolution of the plaintiff’s claims. Following
the decedent’s death on December 14, 2011, the defen-
dant 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 reimburse-
ment 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 per-
taining 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 defen-
dant 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 deter-
mine whether they were eligible for removal. The Pro-
bate 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, Supe-
rior 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 plain-
tiff 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, con-
cluding 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 [Gen-
eral Statutes §§] 45a-186 and [45a-187] was the appro-
priate 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 unambigu-
ous 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 unpalat-
able conclusion is that such orders cannot be appealed
because they are not authorized by the applicable stat-
ute.’’ ‘‘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 appar-
ent conflict between a provision in § 45a-186 (a) indicat-
ing 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 immedi-
ately 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 ‘‘memorial-
ize 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, giving effect to the plain
language of § 45a-186 would lead to ‘‘the type of ‘absurd
or unworkable’ result that authorizes resort to legisla-
tive history,’’ namely, an appeal theoretically could be
taken at any time.
The trial court then turned to the legislative history
of § 45a-187 for guidance, explaining that, prior to a
2011 amendment to § 45a-187 that became effective
October 1, 2011; see Public Acts 2011, No. 11-128, § 13
(P.A. 11-128); § 45a-187 (a) provided in relevant part
that ‘‘[a]n appeal under section 45a-186 . . . shall be
taken within thirty days, except as otherwise provided
in this section. . . .’’ General Statutes (Rev. to 2011)
§ 45a-187 (a). The court further explained that, in 2011,
the legislature deleted this language from the statute
and, in its place, added that an appeal from an order
of the Probate Court ‘‘shall be taken within the time
provided in section 45a-186 . . . .’’ P.A. 11-128, § 13,
codified at General Statutes (Supp. 2012) § 45a-187 (a).
The trial court noted that the 2011 amendment was
necessary because, in 2007, § 45a-186 (a) was amended
to include a forty-five day limitations period for certain
specified appeals. See Public Acts 2007, No. 07-116, § 2
(P.A. 07-116), codified at General Statutes (Supp. 2008)
§ 45a-186 (a). According to the trial court, this 2007
amendment created considerable confusion about
whether that statute’s forty-five day limitations period
or the thirty day limitations period of § 45a-187 (a)
applied to the specified appeals. The trial court noted,
however, that the legislative history surrounding the
2011 amendment gave no indication that, in addition
to eliminating the aforementioned confusion, the legis-
lature intended to overrule prior precedent interpreting
the limitations period of § 45a-187 (a) as commencing
at the time of actual notice. The trial court concluded,
therefore, that the plaintiff’s action was untimely and
granted the defendant’s motion to dismiss.
On appeal, the plaintiff claims that the trial court
incorrectly concluded that the present action is an
appeal. The plaintiff argues that, instead, it is an action
to vindicate his right to a jury trial under § 45a-98a
(a). The plaintiff maintains that the Probate Court lost
jurisdiction over the case when he filed an affidavit
pursuant to § 45a-98a (a) indicating his intent to remove
the case to the Superior Court. The plaintiff further
argues that, even if the present action is an appeal, the
trial court incorrectly concluded that it is barred by the
statute of limitations because, under § 45a-186 (a), the
limitations period does not commence until the orders
appealed from are mailed to the parties.
For the reasons set forth hereinafter, we conclude
that the Probate Court had jurisdiction to decide the
matters before it on March 6, 2013, and, therefore, the
trial court properly treated the present action as an
appeal. We further conclude that the trial court incor-
rectly determined that the appeal was barred by the
statute of limitations set forth in § 45a-186 (a) because
it was not filed within thirty days of the March 6, 2013
hearing. Rather, we conclude that, consistent with the
dictates of § 45a-186 (a), the statute of limitations began
to run when the orders were mailed to the parties,
which did not occur until September 27, 2015. It is
apparent, therefore, that the defect in the plaintiff’s
appeal is not that it was filed too late but, rather, that
it was filed too soon.
The following principles guide our resolution of this
appeal. ‘‘A 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 omitted; internal quotation marks omitted.)
Heussner v. Hayes, 289 Conn. 795, 802, 961 A.2d 365
(2008).
We previously have observed that courts of probate
‘‘are statutory tribunals that have no common-law juris-
diction. . . . Accordingly, [these courts] can exercise
only such powers as are conferred on them by statute.
. . . They have jurisdiction only when the facts exist
on which the legislature has conditioned the exercise
of their power. . . . [A] court [that] exercises a limited
and statutory jurisdiction 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.) In re Joshua S., 260 Conn. 182, 214,
796 A.2d 1141 (2002). Despite these limitations, it is
axiomatic that courts, including courts of limited juris-
diction, ‘‘have jurisdiction to determine [their] own
jurisdiction once [it] has been put in issue.’’ Castro v.
Viera, 207 Conn. 420, 430, 541 A.2d 1216 (1988); see
also Community Collaborative of Bridgeport, Inc. v.
Ganim, 241 Conn. 546, 552, 698 A.2d 245 (1997); Golden
Hill Paugussett Tribe of Indians v. Southbury, 231
Conn. 563, 570–71, 651 A.2d 1246 (1995). Thus, contrary
to the plaintiff’s contention, the Probate Court clearly
had jurisdiction to determine whether it had jurisdiction
to decide the matters before it on March 6, 2013. Indeed,
the plaintiff has cited no authority to the contrary.
Accordingly, as the trial court concluded, once the Pro-
bate Court determined that it did have jurisdiction, the
plaintiff’s only recourse was to file an appeal in accor-
dance with the provisions of § 45a-186 (a). See General
Statutes § 45a-24 (‘‘[a]ll orders, judgments and decrees
of courts of probate, rendered after notice and from
which no appeal is taken, shall be conclusive and shall
be entitled to full faith, credit and validity and shall not
be subject to collateral attack, except for fraud’’); see
also Miller v. McNamara, 135 Conn. 489, 496, 66 A.2d
359 (1949) (‘‘the Superior Court has no jurisdiction to
set aside a decree of a Probate Court except upon
an appeal’’).
We turn, therefore, to the question of whether the
trial court correctly determined that the plaintiff’s
appeal was untimely because it was not filed within
thirty days of the March 6, 2013 probate hearing. As we
previously explained, the trial court concluded that the
appeals period began to run at the time of the hearing
because, under § 51-53, the Probate Court was not
required to reduce its oral orders to writing, and
because courts previously had interpreted the limita-
tions period set forth in § 45a-187 (a) as commencing
on the date of actual notice. We disagree with the trial
court’s interpretation of § 45a-186 for a number of rea-
sons, not the least of which is that it fails to give effect
to that statute’s plain and unambiguous terms regarding
the manner in which probate appeals are perfected. It
is axiomatic that strict compliance with those terms is
a prerequisite to an aggrieved party’s right to appeal
and to the Superior Court’s jurisdiction over the appeal.
The trial court’s analysis also overlooks the fact that,
in 2007, the legislature amended § 45a-186 as part of an
overhaul of the procedures for filing probate appeals.
See P.A. 07-116, § 2. The limitations period that was
added to the statute at that time is wholly consistent
with the other procedures adopted at that time. See
P.A. 07-116, § 2. Our review of the trial court’s interpre-
tation of § 45a-186 is de novo.
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered.’’ (Internal quotation
marks omitted.) Bender v. Bender, 292 Conn. 696, 708,
975 A.2d 636 (2009).
In construing § 45a-186, we are also mindful of the
‘‘familiar principle that a court [that] exercises a limited
and statutory jurisdiction is without jurisdiction to act
unless it does so under the precise circumstances and
in the manner particularly prescribed by the enabling
legislation. . . . Our courts of probate have a limited
jurisdiction and can exercise only such powers as are
conferred on them by statute. . . . They have jurisdic-
tion only when the facts exist on which the legislature
has conditioned the exercise of their power. . . . The
Superior Court, in turn, in passing on an appeal, acts
as a court of probate with the same powers and subject
to the same limitations.’’ (Citations omitted.) Heiser v.
Morgan Guaranty Trust Co., 150 Conn. 563, 565, 192
A.2d 44 (1963). It is also well established that ‘‘[t]he
right to appeal from a decree of the Probate Court is
purely statutory and the rights fixed by statute for taking
and prosecuting the appeal must be met.’’ State v. Gog-
gin, 208 Conn. 606, 615, 546 A.2d 250 (1988); see also
Silverstein v. Camposeo, 122 Conn. App. 338, 343, 999
A.2d 15 (appeal under § 45a-186 ‘‘[cannot be] perfected
absent . . . strict compliance with all statutory
requirements’’), cert. denied, 298 Conn. 926, 5 A.3d 487
(2010). Thus, only ‘‘[w]hen the right to appeal . . .
exists and the right has been duly exercised in the
manner prescribed by law [does] the Superior Court
[have] full jurisdiction over [it] . . . .’’ (Internal quota-
tion marks omitted.) Fuller v. Marvin, 107 Conn. 354,
357, 140 A. 731 (1928).
Section 45a-186 (a) provides in relevant part: ‘‘Except
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 pro-
vided 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, inclu-
sive, 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. Such an appeal
shall be commenced by filing a complaint in the superior
court in the judicial district in which such Probate Court
is located . . . . The complaint shall state the reasons
for the appeal. A copy of the order, denial or decree
appealed from shall be attached to the complaint. . . .’’
(Emphasis added.)
Section 45a-186 is abundantly clear. It provides that
the general limitations period for filing a probate appeal,
with certain exceptions inapplicable to this appeal, is
either thirty or forty-five days, depending on the appeal,
and begins to run when the order, denial or decree
appealed from—which must be attached to the appel-
lant’s complaint—is mailed to the parties. Under the
plain and unambiguous terms of the statute, therefore,
the limitations period for the plaintiff’s appeal com-
menced when the Probate Court mailed copies of the
March 6, 2013 orders to the parties. Because that event
did not occur until September 27, 2015, the trial court
incorrectly determined that the plaintiff’s appeal was
filed beyond the applicable limitations period set forth
in § 45a-186 (a). See, e.g., Gates v. Gates, 51 Conn. Supp.
148, 155, 975 A.2d 147 (2008) (plain and unambiguous
language of § 45a-186 provides that limitations period
for filing probate appeal commences with mailing of
order or decree), aff’d, 115 Conn. App. 293, 971 A.2d
852, cert. denied, 293 Conn. 924, 980 A.2d 910 (2009).
In fact, the appeal was filed too soon.
The trial court did not adhere to the plain language
of § 45a-186 because, in its view, to do so would lead
to an absurd and unworkable result in light of § 51-53.
Unlike the trial court, we do not perceive a conflict
between §§ 45a-186 and 51-53. The latter statute, which
is located in a different title of the General Statutes
that addresses the powers and duties of various judicial
department personnel, provides that, unless a decision
is rendered in the presence of counsel, it is the duty of
the court clerk to immediately notify counsel, in writing
or by electronic delivery, of the decision. See General
Statutes § 51-53 (a). We do not believe that a court
clerk’s duty in this regard in any way conflicts with the
Probate Court’s implicit duty, under § 45a-186 (a), to
issue written orders so that appeals can be perfected
in the manner specified under that statute. Even if there
were some tension between the two statutes, however,
‘‘[i]t is a well-settled principle of construction that spe-
cific terms covering the given subject matter will prevail
over general language of the same or another statute
[that] might otherwise prove controlling. . . . The pro-
visions of one statute [that] specifically focus on a par-
ticular problem will always, in the absence of express
contrary legislative intent, be held to prevail over provi-
sions of a different statute more general in its coverage.’’
(Internal quotation marks omitted.) Housatonic Rail-
road Co. v. Commissioner of Revenue Services, 301
Conn. 268, 302, 21 A.3d 759 (2011). In the present case,
therefore, the specific terms of § 45a-186 (a) governing
the manner in which probate appeals are perfected
necessarily trump the more general provisions of § 51-
53 (a) addressing the duties of a court clerk.6
In reaching a contrary conclusion, the trial court also
relied on the fact that, under the statute of limitations
applicable to probate appeals before the 2007 amend-
ment to § 45a-186; see P.A. 07-116, § 2; the appeals
period commenced when a party received actual notice
of the decree. The pre-2007 amendment version of the
statute was part of a statutory scheme that did not
require a party aggrieved by a decision of the Probate
Court to attach a copy of that decision to his or her
complaint in the Superior Court. Compare, e.g., General
Statutes (Rev. to 2007) § 45a-186 (a), with General Stat-
utes (Supp. 2008) § 45a-186 (a). As the Appellate Court
explained in Corneroli v. D’Amico, 116 Conn. App. 59,
975 A.2d 107, cert. denied, 293 Conn. 928, 980 A.2d 909
(2009), ‘‘prior to October 1, 2007, an appeal from a
judgment of a Probate Court was commenced by motion
to that court. Although no particular form was pre-
scribed for the motion, it was, nonetheless, a requisite
step in the appeal process. . . . General Statutes [Rev.
to 2007] § 45a-191, which was repealed by P.A. 07-116
[§ 33], provided that such motion must state the interest
of the appellant, unless that interest appeared on the
face of the proceedings and the record of the Probate
Court. General Statutes [Rev. to 2007] § 45a-192, also
repealed by P.A. 07-116 [§ 33], required the Probate
Court to issue an order specifying the notice to be
given by the appellant to interested persons. Prior to
the amendments of P.A. 07-116, [General Statutes (Rev.
to 2007)] § 45a-186 (a) provided that ‘[a]ny person
aggrieved by any order, denial or decree of a court
of probate in any matter, unless otherwise specially
provided by law, may appeal therefrom to the Superior
Court in accordance with subsection (b) of this section.
. . .’ Subsection (b) of [General Statutes (Rev. to 2007)]
§ 45a-186 [in turn] provided that such appeals would
be filed ‘in the superior court for the judicial district
in which such court of probate is located . . . .’ An
appeal . . . had to be filed within thirty days. General
Statutes [Rev. to 2007] § 45a-187 (a).
***
‘‘The meaning of § 45a-186 (a), as amended by P.A.
07-116, ascertained both from its text and in relation
to other statutes, is plain and unambiguous. It provides
that an appeal [from] an order of the Probate Court is
commenced by filing a complaint in the Superior Court.
A complaint is filed when it is lodged with the clerk of
the court. . . . The significant changes to this statute,
brought about by [the] passage of P.A. 07-116 [§ 2],
coupled with the simultaneous repeal of [General Stat-
utes (Rev. to 2007)] §§ 45a-191 and 45a-192 . . . reveal
a clear legislative intention to consolidate and even to
simplify and to clarify the probate appeal process. In
amending the statute, the legislature eliminated any
previous requirement that an aggrieved party file a
motion for permission to file an appeal with the Probate
Court to commence [the] appeal.’’ (Citations omitted.)
Corneroli v. D’Amico, supra, 116 Conn. App. 63–65. In
its place, however, the legislature enacted two new
requirements, one explicit and one implicit: (1) that the
aggrieved party attach a copy of the order or decision
appealed from to his or her complaint in the Superior
Court; see P.A. 07-116, § 2, codified at General Statutes
(Supp. 2008) § 45a-186 (a); and (2) that the Probate
Court enable compliance with the first requirement by
providing the aggrieved party with a copy of the order
or decision.
Problems evidently arose, as they often do, with the
implementation of the new statutory scheme. One of
them was the legislature’s failure to repeal the old stat-
ute of limitations, which, as we previously discussed,
the legislature addressed in 2011. See P.A. 11-128, § 13.
Another was the legislature’s apparent failure to make
sufficiently clear that oral orders of the Probate Court
must be reduced to writing so that appeals can be per-
fected in the manner specified under the new law. That
problem also was addressed in 2013, with the adoption
of § 3.3 of the Probate Court Rules. We do not believe,
however, that either problem rendered the statute of
limitations set forth in § 45a-186 unworkable, as the
trial court concluded.
We nevertheless affirm the trial court’s judgment in
light of the fact that the Probate Court did not issue a
written decision until more than two years after the
plaintiff filed this appeal, such that a copy of the deci-
sion could not be appended to the complaint as required
by § 45a-186 (a). See, e.g., State v. Goggin, supra, 208
Conn. 615 (‘‘[t]he right to appeal from a decree of the
Probate Court is purely statutory and the rights fixed
by statute for taking and prosecuting the appeal must
be met’’). The plaintiff, however, as we previously indi-
cated, filed another appeal following the issuance of
the Probate Court’s written decision, which is presently
pending in the judicial district of Waterbury. Our resolu-
tion of the parties’ claims means that that appeal may
proceed in the ordinary course.
The judgment is affirmed.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eve-
leigh, McDonald, Espinosa and Robinson. Although Justice Eveleigh was
not present at oral argument, he has read the briefs and appendices, and has
listened to a recording of oral argument prior to participating in this decision.
1
The decedent’s children, Fletcher Williams Moore, John Parker Moore
and Gwendolyn Calla Moore Gelb, are also defendants in this action. In
the interest of simplicity, we refer to Gieske as the defendant throughout
this opinion.
2
General Statutes § 45a-186 (a) provides in relevant part: ‘‘Except 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. Such an appeal shall be
commenced by filing a complaint in the superior court in the judicial district
in which such Probate Court is located . . . . The complaint shall state the
reasons for the appeal. A copy of the order, denial or decree appealed from
shall be attached to the complaint. . . .’’
3
General Statutes § 45a-98a provides: ‘‘(a) The Probate Court shall have
jurisdiction under subdivision (3), (4) or (5) of subsection (a) of section
45a-98 only if (1) the matter in dispute is not pending in another court of
competent jurisdiction and (2) the Probate Court does not decline jurisdic-
tion. Before the initial hearing on the merits of a matter in dispute in which
jurisdiction is based on subdivision (3), (4) or (5) of subsection (a) of section
45a-98, the Probate Court may, on its own motion, decline to take jurisdiction
of the matter in dispute. Before the initial hearing on the merits of such a
matter, any interested person may file an affidavit that such person is entitled
and intends under section 52-215 to claim a trial of the matter by jury. In
that case, the Probate Court shall allow the person filing the affidavit a
period of sixty days within which to bring an appropriate civil action in the
Superior Court to resolve the matter in dispute. If such an action is brought
in the Superior Court, the matter, after determination by the Superior Court,
shall be returned to the Probate Court for completion of the Probate
Court proceedings.
‘‘(b) If a party fails to file an affidavit of intent to claim a jury trial prior
to the initial hearing in the Probate Court on the merits, or having filed
such an affidavit, fails to bring an action in the Superior Court within the
sixty-day period allowed by the Probate Court, the party shall be deemed
to have consented to a hearing on the matter in the Probate Court and to
have waived any right under section 52-215 or other applicable law to a
trial by jury.’’
General Statutes § 45a-98 (a), in turn, provides in relevant part: ‘‘Courts
of probate in their respective districts shall have the power to (1) grant
administration of intestate estates . . . (2) admit wills to probate . . . (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 . . . (4) . . . 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 . . . (5) . . . apply
the doctrine of cy pres or approximation; (6) . . . call executors, adminis-
trators, trustees, guardians, conservators, persons appointed to sell the land
of minors, and attorneys-in-fact . . . 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.’’
4
In the June 4, 2012 notice, the plaintiff also alleged that he sustained
damages arising out of unspecified events occurring at his residence on
February 11, 2012. The Probate Court declined to exercise jurisdiction over
that claim, however, because the plaintiff already had filed an action in the
Superior Court asserting the same or a similar claim.
5
General Statutes § 51-53 provides in relevant part: ‘‘(a) Whenever any
court, including a court of probate . . . in any matter . . . makes or ren-
ders any decision, order, decree, denial or ruling, unless it is made or
rendered in the presence of counsel in the matter, the clerk of the court
shall immediately notify counsel and any appearing party, in writing . . .
of the decision, order, decree, denial or ruling. . . .
‘‘(b) The time limited by law for commencing appellate proceedings on
the decision, order, decree, denial or ruling shall date from the time when
such notice is issued by the clerk.’’
6
We note that the trial court also reasoned that its interpretation that the
appeals period commenced at the time of actual notice was consistent with
Practice Book § 63-1 (b), which governs appeals from decisions of the
Superior Court and provides in relevant part: ‘‘If notice of the judgment or
decision is given in open court, the appeal period shall begin on that day.
If notice is given only by mail, the appeal period shall begin on the day that
notice was mailed to counsel of record by the clerk of the trial court. . . .’’
We believe that the absence of similar language in § 45a-186 (a) or in the
Probate Court Rules of Procedure should compel the opposite conclusion.
In any event, it is well established that ‘‘[a]n appeal from a probate order
or decree to the Superior Court is not a civil cause of action. It has no more
of the ordinary attributes of a civil action than the original proceedings in
the court of probate.’’ Silverstein’s Appeal from Probate, 13 Conn. App. 45,
53, 534 A.2d 1223 (1987); see also Slattery v. Woodin, 90 Conn. 48, 50, 96
A. 178 (1915) (‘‘[a]ppeals from probate are not ‘actions’ or ‘civil causes or
actions, between party and party’ ’’). The trial court’s reliance on Practice
Book § 63-1 (b), therefore, was misplaced.