Department of Social Services v. Saunders, No. 32 09 99 (Dec. 22, 1995)
Opinion of the Court
On April 25, 1995, the Probate Court, Hall, J., overruled the objection and ordered that the conservator be permitted to enter into a trust agreement for the benefit of James Saunders on terms subject to the court's approval. On May 22, 1995, the plaintiff filed a motion in the Probate Court to allow an appeal to the Superior Court on the ground that the funding of the trust would deprive the estate of funds to expend on Mr. Saunders' behalf, thereby causing the Department of Social Services to make Title XIX Medicaid payments to Mr. Saunders.
On May 23, 1995, the court granted the motion and entered a decree allowing the appeal. The court directed that notice be given to Edith Saunders, conservatrix of the estate of James Saunders, "by some proper officer serving on her and here[,] in the manner prescribed for the service of civil process[,] a true and attested copy of the Motion for Appeal for Probate and of this Order at least twelve (12) days before the return date of the appeal and that due return of said service upon each be made to the Superior Court and to this Court." The return date set by the court was the fourth Tuesday of June, 1995.
On July 28, 1995, the conservatrix filed a motion to dismiss the action on the ground that the court lacks jurisdiction over the estate because the "process initiating the appeal . . . was statutorily deficient in three respects." In her memorandum of law in support of the motion to dismiss, the conservatrix argues that jurisdiction is lacking because: (1) the State's appeal "did not state the . . . [time and] place for the filing of an appearance by the conservatrix" in accordance with General Statutes §
"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.'" (Citations omitted; emphasis in original.)Gurliacci v. Mayer,
The first ground on which the conservatrix argues that the court lacks personal jurisdiction over her is that the State's appeal did not state the time and place for the filing of an appearance in accordance with General Statutes §
In response, the State argues that the statutory provisions regarding service for civil actions do not apply to Probate appeals because "a Probate Appeal is not a new action but, instead, is an continuation [sic] of a judicial action that is pending in the Probate Court." (Emphasis in original.) (State's brief in opposition, p. 2.) The State further argues that Bergin
is distinguishable and urges the court to follow the Supreme Court's decision in Coughlan v. Murphy,
At the outset, it is noted that although counsel for the State attacks the reasoning of the Bergin court, recent cases have cited Bergin as good authority. See, e.g., Estate of Kucejv. Kucej,
In addition, Bergin v. Bergin and Coughlan v. Murphy are reconcilable. In Bergin, the Appellate Court stated: "For purposes of mesne process, a probate appeal is considered a civil action. . . . As such, the requirements of General Statutes §
In Coughlan v. Murphy, supra,
In other words, it can be said that Coughlan v. Murphy stands for the proposition that §
Since the conservatrix argues that the State's appeal is deficient because "it did not state the . . . [time and] place for the filing of an appearance," she is arguing, in essence, that the process directed by the Probate Court was deficient — not that the return of process to court was late. Therefore,Coughlan v. Murphy controls this issue. Since the type of notice ordered by the Probate Court was in compliance with §
Parenthetically, it is noted that at least one court has held that "[t]he failure of the appeal papers to contain the date and place for filing an appearance is just the type of circumstantial defect that is covered by . . . [§]
Turning to the conservatrix's argument that the court lacks jurisdiction over her because the appeal was not directed to a "proper official" pursuant to General Statutes §
As to the conservatrix's contention that the appeal is deficient because it was not "issued by a commissioner of the Superior Court or other proper authority, "this too is controlled by the Supreme Court's holding in Coughlan v. Murphy and that process was not deficient. An appeal from a decision of the Probate Court is taken when an aggrieved party files a motion in the Probate Court for permission to appeal in accordance with General Statutes §
In sum, since the motion to appeal the decision of the Probate Court was signed by a commissioner of the Superior Court and was otherwise in conformity with General Statutes §
Stodolink, J.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.