In re Probate Appeal of Knott

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IN RE PROBATE APPEAL OF ANDREW S.
KNOTT, ADMINISTRATOR (ESTATE
OF LUCILLE KIRSCH)
(AC 41980)
DiPentima, C. J., and Elgo and Bright, Js.

Syllabus

The substitute plaintiff, the administrator of the estate of L, appealed to
this court from the judgment of the trial court dismissing his appeal
from the orders of the Probate Court denying the application to terminate
the conservatorship of the estate of L and request for a waiver of fees
filed by M, the conservator of L’s estate and the original plaintiff to the
probate appeal. The Probate Court had mailed notice of its orders to
the parties on October 20, 2016. Prior to filing this appeal with the
Superior Court on December 9, 2016, M filed an application for a waiver
of fees in that court on December 1, 2016, which the trial court granted
on December 5, 2016. Thereafter, the trial court rendered judgment
dismissing the appeal for lack of subject matter jurisdiction on the
ground that it was untimely pursuant to the statute (§ 45a-186 [a]) that
requires an appeal from a Probate Court order to be filed in the Superior
Court within forty-five days of when the order was mailed to the parties.
On the substitute plaintiff’s appeal to this court, held that the trial court
improperly dismissed the probate appeal for lack of subject matter
jurisdiction on the ground that it was untimely; although § 45a-186 (a)
requires an appeal from an order of the Probate Court denying an
application to terminate a conservatorship to be filed within forty-five
days of when the order was mailed to the parties, pursuant to the
applicable statute (45a-186c [b]), the filing of the application for a waiver
of fees on December 1, 2016, tolled the time in which to commence the
probate appeal until the court rendered judgment on the fee waiver
application on December 5, 2016, which extended the time within which
to file the appeal to December 9, 2016, the date on which M timely filed
the probate appeal with the Superior Court.
Argued January 28–officially released May 14, 2019

Procedural History

Appeal from the orders of the Probate Court for the
district of Hamden-Bethany denying the application to
terminate the conservatorship and request for a waiver
of fees filed by the plaintiff William P. Meyerjack as
conservator of the estate of the decedent, brought to
the Superior Court in the judicial district of New Haven,
where the court, Markle, J., granted the motion filed
by Andrew S. Knott, administrator of the estate of the
decedent, to be substituted as the plaintiff; thereafter,
the matter was tried to the court; judgment dismissing
the appeal, from which the substitute plaintiff appealed
to this court. Reversed; further proceedings.
Andrew S. Knott, self-represented, with whom, on
the brief, was Robert J. Santoro, for the appellant (sub-
stitute plaintiff).
Opinion

DiPENTIMA, C. J. The narrow question presented in
this appeal asks us to determine whether the Superior
Court improperly dismissed the probate appeal of the
substitute plaintiff, Andrew S. Knott, administrator of
the estate of Lucille S. Kirsch, as untimely. Specifically,
the substitute plaintiff argues that his appeal was not
untimely because an application for a waiver of fees
(fee waiver) had been filed pursuant to General Statutes
§ 45a-186c,1 which tolled the time limit set forth in Gen-
eral Statutes § 45a-186 (a).2 We agree with the substitute
plaintiff and, therefore, reverse the judgment of the
trial court.
The following undisputed facts and procedural his-
tory are relevant to this appeal. On June 30, 2010, Wil-
liam P. Meyerjack was appointed conservator of the
estate of Lucille S. Kirsch. On October 14, 2016, pursu-
ant to General Statutes § 45a-660 (a) (2)3 and § 33.17
of the Probate Court Rules,4 William P. Meyerjack, con-
servator of the estate of Lucille S. Kirsch (Meyerjack),5
filed an application to terminate the conservatorship
of the estate of Lucille S. Kirsch and waive the require-
ment of a final financial account (application to termi-
nate the conservatorship) with the Probate Court. On
the same date, Meyerjack filed a request for a waiver
of fees. Meyerjack’s application to terminate the conser-
vatorship and request for a waiver of fees were denied
by the Probate Court, and notice of those decisions
was mailed on October 20, 2016.
On December 1, 2016, prior to filing his appeal with
the Superior Court pursuant to § 45a-186 (a), Meyerjack
filed a fee waiver. The fee waiver was granted by the
Superior Court on December 5, 2016, and the complaint6
was filed on December 9, 2016. Shortly thereafter, while
his appeal was pending in the Superior Court, Meyer-
jack filed a motion to cite in Lucille S. Kirsch, the conser-
vatee, as a new party to the appeal. Although the
Superior Court appears not to have acted on Meyer-
jack’s motion, Kirsch filed an appearance on December
13, 2016, and, on December 21, 2016, filed an amended
complaint7 and amended writ of summons. At some
point, following these multiple filings, Kirsch was added
to the case caption as the designated plaintiff. On Sep-
tember 30, 2017, Kirsch died, and she was replaced with
the substitute plaintiff on February 27, 2018.
Following oral argument on April 3, 2018, the Supe-
rior Court sua sponte dismissed the substitute plaintiff’s
appeal as untimely. In its order, dated July 25, 2018,
the court found that the appeal was filed on December
9, 2016, which was more than forty-five days after the
Probate Court mailed notice of its denials of Meyer-
jack’s application to terminate the conservatorship and
request for a waiver of fees. Accordingly, because the
appeal was not filed within the deadline set forth in
§ 45a-186 (a), the court concluded that it lacked subject
matter jurisdiction over the substitute plaintiff’s appeal.
The substitute plaintiff now appeals that decision to
this court.
On appeal, the substitute plaintiff claims that the
Superior Court improperly dismissed his appeal as
untimely because the filing of the fee waiver tolled the
time limit set forth in § 45a-186 (a).8 We agree with the
substitute plaintiff and, accordingly, reverse the judg-
ment of the trial court dismissing his appeal as untimely.
We begin our analysis of the substitute plaintiff’s
claim by setting forth our relevant standard of review.
‘‘Our Supreme Court has long held that because [a]
determination regarding a trial court’s subject matter
jurisdiction is a question of law, our review is plenary.
. . . Moreover, [i]t is a fundamental rule that a court
may raise and review the issue of subject matter juris-
diction at any time. . . . Subject matter jurisdiction
involves the authority of the court to adjudicate the
type of controversy presented by the action before it.
. . . [A] court lacks discretion to consider the merits
of a case over which it is without jurisdiction . . . .
The subject matter jurisdiction requirement may not be
waived by any party, and also may be raised by a party,
or by the court sua sponte, at any stage of the proceed-
ings, including on appeal.’’ (Internal quotation marks
omitted.) Arriaga v. Commissioner of Correction, 120
Conn. App. 258, 261–62, 990 A.2d 910 (2010), appeal
dismissed, 303 Conn. 698, 36 A.3d 224 (2012).
‘‘[W]e are . . . mindful of the familiar principle that
a court [that] exercises a limited and statutory jurisdic-
tion is without jurisdiction to act unless it does so under
the precise circumstances and in the manner particu-
larly 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 jurisdiction 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 limita-
tions. . . . 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. . . . 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 quotation marks omitted.) Burnell
v. Chorches, 173 Conn. App. 788, 793, 164 A.3d 806
(2017). Failure to comply with the relevant time limit
set forth in § 45a-186 (a) ‘‘deprives the Superior Court
of subject matter jurisdiction and renders such an
untimely appeal subject to dismissal.’’ Corneroli v.
D’Amico, 116 Conn. App. 59, 67, 975 A.2d 107, cert.
denied, 293 Conn. 928, 980 A.2d 909 (2009).
Applying the foregoing principles to the present
appeal, we conclude that the court improperly dis-
missed the substitute plaintiff’s appeal as untimely. The
time limit to appeal from a probate court’s denial of
an application to terminate a conservatorship brought
pursuant to § 45a-660 is forty-five days from the date
that notice of the denial is mailed. See General Statutes
§ 45a-186 (a). When an appellant files a fee waiver pur-
suant to § 45a-186c, the time limit set forth in § 45a-
186 (a) is tolled until a judgment on the fee waiver is
rendered. See General Statutes § 45a-186c (b). In the
present matter, the trial court found that the notice was
mailed by the Probate Court on October 20, 2016, and
determined that the deadline to appeal expired on
December 4, 2016. The court apparently did not con-
sider the fact that prior to filing this appeal, Meyerjack
filed a fee waiver on December 1, 2016, which was not
granted until December 5, 2016. Pursuant to § 45a-186c,
the time limit set forth in § 45a-186 (a) was tolled during
this five day interim, and, Meyerjack had until Decem-
ber 9, 2016, in which to file his appeal. Therefore,
because the time limit in which to file this appeal was
tolled while Meyerjack’s fee waiver was pending, the
court wrongly concluded that this appeal was untimely
and improperly dismissed the case for lack of subject
matter jurisdiction.
The judgment is reversed and the case is remanded
for further proceedings.
In this opinion the other judges concurred.
1
General Statutes § 45a-186c (b) provides in relevant part: ‘‘If the appellant
claims that such appellant cannot pay the costs of an appeal taken under
section 45a-186, the appellant shall, within the time permitted for filing the
appeal, file with the clerk of the court to which the appeal is to be taken
an application for waiver of payment of such costs, including the requirement
of bond, if any. . . . The filing of the application for the waiver of such
costs shall toll the time limits for the filing of an appeal until such time as
a judgment on such application is rendered. . . .’’
2
General Statutes § 45a-186 (a) provides in relevant part: ‘‘[A]ny 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 . . .
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, or, if the Probate Court is located in a probate
district that is in more than one judicial district, by filing a complaint in a
superior court that is located in a judicial district in which any portion of
the probate district is located . . . .’’
3
General Statutes § 45a-660 (a) (2) provides in relevant part: ‘‘If the court
finds upon hearing and after notice which the court prescribes that a con-
served person has no assets of any kind remaining except for that amount
allowed by subsection (c) of section 17b-80, the court may order that the
conservatorship of the estate be terminated. . . .’’
4
Section 33.17 (a) of the Probate Court Rules provides in relevant part:
‘‘A conservator of the estate may petition the court to terminate the conserva-
torship of the estate and waive the requirement of a final financial report
or account if the Department of Social Services has determined that the
person under conservatorship is eligible for Medicaid under Title 19 of the
Social Security Act. . . .’’
5
Although Meyerjack is designated as a defendant, along with several
other parties who did not appear, he was in fact the original plaintiff in this
probate appeal. His status was changed in the court’s docket at some point
during those proceedings. Accordingly, as his interests are not adverse to
those of the substitute plaintiff, we do not refer to him as the defendant.
6
Meyerjack’s original complaint alleged, inter alia, that the Probate Court
violated his due process rights when it denied his application to terminate
the conservatorship and request for a waiver of fees without providing him
notice and a hearing.
7
The amended complaint alleges the same reasons for appeal and seeks
the same relief as the original complaint.
8
During oral argument to this court, the substitute plaintiff requested
that, in resolving the merits of this appeal, we also address the legal effect
that a trial court’s decision to grant a fee waiver has on the commencement
of a probate appeal. Pursuant to § 45a-186 (a), any person aggrieved by a
decree or denial from a Probate Court may appeal to the Superior Court
by filing a copy of the complaint in the judicial district in which the Probate
Court is located. The substitute plaintiff contends that this service procedure
fails to accommodate appeals in which a party seeks a fee waiver because,
in those cases, the complaint cannot be filed until the fee waiver is granted.
Accordingly, because the fee waiver must include a copy of the complaint
and all other documents necessary to commencing the probate appeal, the
substitute plaintiff proposes that we should deem an appeal filed for the
purpose of § 45a-186 (a) once a fee waiver is granted. We do not agree.
Contrary to the substitute plaintiff’s claim, our review of the relevant law
reveals that there is no requirement that a party include a copy of his
complaint when seeking a fee waiver pursuant to § 45a-186c. Rather, § 45a-
186c requires a party to comply with the provisions set forth in Practice
Book § 8-2, which in turn states that ‘‘[t]he application shall set forth the
facts which are the basis of the claim for waiver and for payment by the
state of any costs of service of process; a statement of the applicant’s current
income, expenses, assets and liabilities; pertinent records of employment,
gross earnings, gross wages and all other income; and the specific fees and
costs of service of process sought to be waived or paid by the state and
the amount of each. The application and any representations shall be sup-
ported by an affidavit of the applicant to the truth of the facts recited.’’
Practice Book § 8-2 (a). Accordingly, if this court were to deem a probate
appeal commenced once a fee waiver is granted, a party could arguably
commence an appeal without satisfying the procedural requirements in
§ 45a-186 (a). The role of the courts is not to rewrite statutes or graft
exceptions onto the language existing therein; that is a function of the
legislature. See Asia A. v. Geoffrey M., 182 Conn. App. 22, 33, 188 A.3d 762
(2018). We, therefore, decline to hold that when a party files a fee waiver
in a probate appeal, the appeal should be deemed commenced on the date
the fee waiver is granted.