:SUPERIOR COURT MARJORIE PARTCH VS MATTHEW CAPUPTO ·:STAMFORDINORWALK JUDICIAL :DISTRICT AT STAMFORD

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:SEPTEMBER 23,2011 MEMORANDUM OF DECISION RE: MOTION TO DISMISS #103 AND 105

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On May 3, 2011, the plaintiff, Marjorie Partch, filed a complaint against the defendants, Matthew Caputo (Caputo) and Wilton Meadows Limited Partnership (Wilton Meadows), and makes the following allegations. On February 3,2005, Dorothy Partch (Partch) gave the plaintiff a durable power of attorney and made the plaintiffhealthcare the plaintiffwas agent and attorney-in-fact. As healthcare agent,

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also to serve as conservator to the extent that one was needed. On April 7, 2010, Wilton Meadows initially

Partch was admitted to Wilton Meadows after suffering a stroke.

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recommended that the plaintifftake Partch to her home and provide for nursing care there, believing that Partch's medicare benefits would be ending. When Wilton Meadows learned that the plaintiff had assets including a home, it changed its position that Partch should be discharged and prepared an application for the appointment of the defendant as conservator. The plaintiff further alleges that the application erroneously represented that Partch had not appointed a healthcare representative and that it was unknown whether Partch had executed a power of attorney. Moreover, the plaintiff alleges that Wilton Meadows knew that the representations were erroneous since the plaintiff had used the documents granting her the power of attorney and making her appointed healthcare agent

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The plaintiff seeks: (1) an order reversing the

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decision appointing Caputo as the conservator; (2) an order appointing the plaintiff as conservator of Partch; and (3) an order that a conservator is not required based on the designation of health care

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!~moved to reargue that appointment
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agent executed by Partch.' On July 27,2010, the Norwalk probate court appointed Caputo as conservator. The plaintiff on March 24,2011, and six days later the probate court denied

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the motion, thereby prompting this appeaL On June 8, 2011, Caputo filed a motion to dismiss the plaintiffs complaint on the grounds
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that no timely appeal was taken by the plaintiff from the decree entered by the probate court on July that motions to reopen and reargue are inapplicable to probate procedure and that even motion was untimely. Caputo filed

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I 27,2010,

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if such motions do apply to probate procedure, the plaintiffs

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oflaw in support ofthe motion. In addition, Wilton Meadows filed its own motion complaint on four grounds. The first three grounds mirror the grounds of

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I Caputo's motion; the fourth ground is that the plaintiff is disguising a motion to remove a fiduciary
as an appeal of her motion to reopen and reargue so as to circumvent adjudication of the matter. motions on June 20,2011. "A motion to dismiss ... properly attacks the jurisdiction of the court, essentially the probate court's The plairitiff filed a memorandum in opposition to the defendants'

In addition to filing a complaint, on May 3, 2011, the plaintiff also moved for a temporary restraining order ex parte against Caputo on the ground that the plaintiffwill be harmed irreparably if the order is not granted. The plaintiff seeks to restrain Caputo from: (1) selling Partch's residence; (2) paying any fees to Wilton Meadows; (3) paying any fees to himself or his counsel; and (4) liquidating or selling any personal property of Partch. 2

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~l asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should
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~~ be heard by the court .... " (Internal quotation marks omitted.) Bacon Construction Co. v.

j ~ Dept. of Public Works, 294 Conn. 695, 706,987 A.2d 348 (2010). "The motion to dismiss ...
~:, ii ~ admits all facts which are well pleaded, invokes the existing record and must be decided upon 'I ~ jf ~ ~ n ~j that alone .... Where, however ... the motion is accompanied by supporting affidavits ~.]

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containing undisputed facts, the court may look to their content for determination of the issue and need not conclusively presume the validity of the allegations ofthe

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II complaint." (Internal quotation marks omitted. ) Ferreira v. Pringle, 255 Conn. 330, 346-47,
766 A.2d 400 (2001). "Subject matter jurisdiction involves the authority of the court to the type of controversy presented by the action before it. . .. [A] court lacks
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discretion to consider the merits ofa case over which it is without jurisdiction .... " (Internal quotation marks omitted.) Burton v. Commissioner of Environmental Protection, 291 Conn. "[T]he plaintiff bears the burden of proving subject matter

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I 789, 802, 970 A.2d 640 (2009).

jurisdiction, whenever and however raised." (Intemal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.l2, 829 A.2d 801 (2003). "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ... clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) (2009). Caputo makes the following arguments. First, no appeal was taken by the plaintiff from the probate decree on July 27,2010 appointing Caputo as conservator. Under General Statutes § Wilcox v. Webster Ins. Co., 294 Conn. 206, 213-14, 982 A.2d 1053

45a-186, the plaintiff had only forty-five days from the mailing of the decree to challenge the

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appointment, after which point the decree became a final judgment.

Second, motions to reopen

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and to reargue pursuant to General Statutes § 52-212a and Practice Book § 11-12 (a), respectively, are inapplicable to probate proceedings. Such procedural remedies are available to

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!~ Finally, even if § 52-2I2a and Practice Book § 11-12 (a) apply to probate proceedings, the ~l ~

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a party in a civil action pending in the superior court, but are inapplicable to probate procedure.

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still must be filed no later than four months following the date on which the decree was

entered or twenty days after issuance of notice of the decree. The plaintiff did not comply with either of these deadlines. In his supplemental brief, Caputo adds the following arguments. First, the plaintiff has

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The plaintiff had two options: (1) appeal the July

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27,2010 probate decree appointing a conservator to the superior court; or (2) file an application for writ of habeas corpus by an individual subject to guardianship or involuntary representation pursuant to General Statutes § 45a-705a. The plaintiff did not exercise the first option, and it is too late for her to do so now. Nevertheless, the second option is still available to her. In its supplemental brief, Wilton Meadows argues that while there is an exception to the four month time period for motions to reopen for allegations of fraud, that exception applies only if the moving party is free from laches or unreasonable delay, the moving party was diligent in its discovery and exposure of the fraud, there is clear proof of perjury or fraud and there is a substantial likelihood that the result of a new trial would be different. Wilton Meadows further argues that not only did the plaintiff fail to exercise diligence and sit on her hands, there is no clear proof of fraud or mutual mistake. Finally, Wilton Meadows argues that the superior court

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lacks the ability to exercise its equitable powers when it hears a probate appeal because in that

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and, thus, as a court of limited jurisdiction. I In opposition to the motions and in its supplemental brief, the plaintiff makes the I ~ d following arguments. First, because her underlying motion is not an appeal from the probate
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!~ instance it is sitting as a court of probate

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decree appointing the defendant as conservator but rather is an appeal from the probate court's denial of the plaintiffs motion to reargue the appointment, the forty-five day time period is appeal is timely. Moreover, Wilton Meadows engaged in a in failing to disclose properly in its application to appoint a

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fraudulent misrepresentation

conservator the accurate statuses of the power-of-attorney, designation of health care agent and designation of conservator that were held by the plaintiff. Accordingly, the four month time frame to reopen and reargue is inapplicable. Finally, even if the conduct of Wilton Meadows did not rise to the level of fraud, Wilton Meadows at least made a mistake in its application to appoint a conservator, upon which the probate court relied in appointing the defendant as conservator. The plaintiff argues that equitable relief against probate court decrees may be held in cases of mistake. "In an appeal from probate, the Superior Court is a court of limited jurisdiction. It has

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only the jurisdiction granted to it by statute." Graham v. Estate of Graham, 2 Conn. App. 251, 254,477 A.2d 158, cert. denied, 194 Conn. 805, 482 A.2d 710 (1984). "While the Superior Court could, on appeal, review the order ofthe Probate Court, it could not exercise any greater powers than the Probate Court." Satti v. Rago, 186 Conn. 360, 365, 441 A.2d 615 (1982). "The Superior Court has the statutory authority to hear and determine appeals brought by a person aggrieved by any Probate Court order, denial or decree." Lesnewski v. Redvers, 276 Conn. 526, 5

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A.2d 1207 (2005). The relevant statute governing appeals from probate decrees is §

rl~45a-186 (a), which provides in relevant part: "Any person aggrieved by any order, denial or
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:i later than forty-five days after the mailing of an order, denial or decree ...
the Superior Court."

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appeal therefrom to

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A preliminary issue is whether this court has subject matter jurisdiction over appeals from probate court appointments of a conservator. "General Statutes § 45a-648 provides that Because the

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right to file an application ... was expressly given to any ... person, it naturally follows that [a] person who filed an application but was denied [the relief requested] ... should be afforded an opportunity to appeal from the Probate Court's decision .... By the express terms of the statute,

the plaintiff was given a right to apply for a conservator; in order for that right to be adequately protected, the plaintiff must be permitted to appeal the decision of the Probate Court." (Citation omitted; internal quotation marks omitted.) Honan v. Greene, 37 Conn. App. 137, 145,655 A.2d 274 (1995). "The general canons of statutory construction also mandate that § 45a-186 should be read to allow for a forty-five-day appeal period in conservatorship cases." Debruycker v. Duval, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 106003024 (April 16, 2010, Karazin, J.TR.) (49 Conn. L. Rptr. 684, 686). See also March en tine v. Brittany Farms Health Center, 84 Conn. App. 486,494-95, 854 A.2d 40 (2004)

(concluding that "the plaintiff has a legally protected interest in the care of his mother and that a possibility exists that this interest would be affected adversely by the appointment of a conservator. Accordingly, the plaintiffwas aggrieved and possessed the necessary standing to 6

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1:1 appeal from the Probate Court's actions [appointing a conservator),,). i
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Thus, the appointment of

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a conservator by the probate court is an appealable issue over which the superior court has subject matter jurisdiction. The next issue is whether a party may challenge a probate court's appointment of a

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H conservator beyond the forty-five day time period of § 45a-186 (a). "While probate courts do n
not have general equity jurisdiction, they may exercise equitable powers under certain Killen v. Klebanoff, 140 Conn. 111, 118,98 A.2d 520 (1953). "Exceptional
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circumstances exist ... in which the court will consider an attack on a probate order or decree in lieu of or subsequent to appeal. For example, the court will entertain an equitable proceeding directly attacking a prior judgment or decree ifit is alleged that the judgment or decree is invalid Reynolds v. Owen, 34 Conn. Sup.

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107,114,380

A.2d 543 (1977). "The Superior Court may, in proper cases, grant relief against

decrees of the Probate Court procured hy fraud, accident, mistake and the like." (Citation omitted; emphasis in original; internal quotation marks omitted.) Hunt v. Dubno, 1 Conn. App. 529,534,473 A.2d 1235 (1984). In Phinny v. Rosgen, 162 Conn, 36,42,291 A.2d 218 (1971),

the Supreme Court ruled on the plaintiffs

appeal from a probate court order and held that

"[sjince the appeal was not taken in time, the plaintiff cannot have the probate decree reviewed by a trial de novo in the Superior Court. . .. Her only recourse on the ground of misrepresentations would be by an appeal to the general equitable power of the Superior Court, which may, in proper cases, grant relief against decrees of the Probate Court procured by fraud, accident, mistake and the like." (Citation omitted; internal quotation marks omitted.) Id.

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The court has dealt with cases in which the plaintiff challenged a probate decree by
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appeal had lapsed. For instance, in Pignataro v. Cappiello, Superior

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Court, judicial district of Fairfield, Docket No. 319464 (May 16, 1996, Levin, J), the plaintifffather appealed the probate decrees terminating his parental rights in his natural daughter and for the adoption of the plaintiffs daughter by the co-defendant. The plaintiff alleged

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from the court. The defendants moved to dismiss on the ground that the court lacked

subject matter jurisdiction over the appeal because the plaintiff did not comply with the statutory requirements for appeals from probate courts by not filing the appeal within the ninety day In denying the defendants' motion, the court held that where the plaintiff

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specifically alleged fraud and collusion, the plaintiff had alleged an equitable cause of action, independent of the statutory right to appeal a probate decree, thereby granting the court subject matter jurisdiction over the appeal. rd. "Equity has, in general, the same power to grant relief against probate judgments as against ordinary judgments .. " Furthermore, where a plaintiffs appeal from probate was untimely ... her only recourse on the ground of misrepresentations would be by an appeal to the general equitable power ofthe Superior Court .... " (Citations omitted; internal quotation marks omitted.) rd. Accordingly, the court held that it was immaterial that the plaintiff challenged the probate court decree beyond the statutory time frame for appealing probate decrees. The court reasoned that so long as a plaintiff appeals to the equitable power of the superior court and specifically alleges fraud, the plaintiff may appeal a 8

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probate decree beyond the statutory deadline. Id. Moreover, in Daddona v. Kindred Nursing Centers East, LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 4011072 (August 14,2007, J.), the plaintiff trustee filed a complaint to enjoin enforcement of a probate order

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~~ 1 approving a stipulated judgment between the trustee and the nursing center under which the

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I plaintiff agreed to pay the nursing center for services rendered to the decedent.

The defendant

~~second trustee moved to dismiss on the ground that the court lacked jurisdiction over the

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the probate court's exclusive jurisdiction by way of the probate statutes and by way of rd. The court then held that although there was no probate statute that conferred

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jurisdiction over the present matter, the broadest reading of the entire complaint allowed the trial court to consider it under the equitable power ofthe court. "In addition to hearing a formal appeal from a probate order or decree, the Superior Court also has subject matter jurisdiction over probate matters when an aggrieved party requests relief in equity, as Probate Courts lack general equity jurisdiction." Id. Therefore, to the extent that the plaintiff alleges fraud in the

procurement of a probate decree and thereby invokes the equitable power of the superior court, the court has jurisdiction over the matter, independent of any statutory right to appeal a probate decree. In the present case, the plaintiff is raising an equitable claim against the defendants by alleging that Wilton Meadows engaged in mistake or fraud in its application for the appointment 9

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and that the probate court relied on such fraud or mistake in its decree of July 27,

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Specifically, the plaintiff alleges that she had power of attorney from Partch, that she was

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designated as the healthcare agent and that as healthcare agent she held the position of conservator. The plaintiff further alleges that she had significant dealings with Wilton Meadows, admitting Partch there and signing documents for her admission, and that Wilton Meadows thus about the positions that the plaintiff held but failed to investigate adequately and

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to disclose those facts to the probate court. Thus, by alleging mistake or fraud in the procurement ofthe probate decree, the plaintiff has invoked the equitable powers of this court,

~~ independent of the statutory framework for appealing probate decrees. Caputo's argument that

i no timely appeal was taken by the plaintiff ofthe probate decree of July 27,2010 is consistent Ii with the fact that the plaintiff is not relying on the probate statutes to challenge the defendant's
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as conservator, but i ut mstead

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Accordingly, the fact that the forty-five day time provision of § 45a-186 for appealing a probate decree lapsed before the plaintiff brought this action does not preclude this court from exercising subject matter jurisdiction over the plaintiff's claims. Wilton Meadows argues, however, that this court lacks equitable powers since it is limited to the same jurisdictional constraints as a probate court. Wilton Meadows relies on Heiser v. Morgan Guaranty, 150 Conn. 563, 192 A.2d 44 (1963) for this proposition. In that

case, the court held that the trial court did not err in dismissing a claimant's appeal of a provision for the trustee's fee when that appeal was not filed within the statutory time frame. The court explained that "the Superior Court could not, by the exercise of equitable principles or otherwise, relieve the plaintiff from the effect of the late filing of the appeal." Id.,566. 10 Nevertheless,

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d. . is distinguished from Reynolds v. Owen, supra, 34 Conn. Sup. 107, an Its progeny, III Heiser is not inconsistent with the

II that the plaintiff never alleged fraud, accident or mistake.

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principle that the Superior Court may grant equitable relief against a probate decree to the extent alleges fraud, accident or mistake in the procurement of the decree; in Heiser, so there were no claims to which the court

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i the plaintiff simply never made such allegations, H ii could apply equitable relief.
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~:!that the plaintiff

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Wilton Meadows also relies on Mallory's Appeal, 62 Conn. 218, 25 A. 109 (1892) in support of its argument that this court is subject to the same jurisdictional limitations as a probate In that case, the court held that the appointment of an administrator to manage

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unadministered assets was valid and that the heir could seek the appointment of the administrator even if the unadministered assets were never realized. The court added that in reviewing the decree of a probate court, the superior court was limited to the jurisdiction of the probate court and could not determine title to property. The probate courts "can neither try titles to property nor determine questions of estoppel, and the Superior Court, sitting for the trial of a case like this, takes the place of the probate court from which it came, and can do no more than could have been done by that court." (Internal quotation marks omitted.) Id., 223. Nevertheless, this case is also distinguished from Reynolds v. Owen, supra, 34 Conn. Sup. 107, and its progeny in that the plaintiff did not allege fraud, accident or mistake and, therefore, did not invoke the equitable powers ofthe court. The court did not suggest that the superior court would be barred from exercising its equitable powers to the extent that the plaintiff alleged that the probate decree was procured by fraud, accident or mistake. To the contrary, the court stated that "no order made by a court of probate upon any matter within its jurisdiction shall be attacked collaterally except for

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fraud, or set aside save by appeal .... " (Emphasis added; internal quotation marks omitted.)

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~lId., 220-21.

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In addition to arguing that this court lacks equitable powers in the context of probate appeals, Wilton Meadows further argues that the doctrine of laches precludes the plaintiff from invoking this court's equitable powers. "The defense oflaches, if proven, bars a [party] from

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! i seeking equitable relief in a case in which there has been an inexcusable delay that has prejudiced ! H l I the [opposing party]. First, there must have been a delay that was inexcusable, and, second, that
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delay must ha ve prej udiced the [opposing party]. . " The doctrine functi OIlS in part as a kind of flexible statute of limitations, barring longdelayed claims where no statute oflimitations available for that purpose .... was

The mere lapse oftime does not constitute laches ... unless it

results in prejudice to the [opposing party] ... as where, for example, the [opposing party] is led to change his position with respect to the matter in question." (Citations omitted; internal quotation marks omitted.) Fromm v. Fromm, 108 Conn. App. 376, 385-86, 948 A.2d 328 (2008). "The burden is on the party alleging laches to establish that defense."

Cam inis v. Troy,

112 Conn. App. 546, 552, 963 A.2d 701, cert. granted on other grounds, 291 Conn. 909,969 A.2d 171 (2009). In the present case, Wilton Meadows alleges that the plaintiffwas present during the

probate hearing appointing Caputo as conservator and that the plaintiff failed to object to the appointment. Moreover, at the short calendar, the court asked the plaintiff's counsel why the

plaintiff did nothing upon receiving notice of the probate decree appointing Caputo as conservator, and counsel responded that the plaintiff did not have an attorney at the time nor the finances to obtain one. Even if these allegations and facts suggest that the plaintiff delayed 12

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in bringing its present claims against the defendants, neither defendant has alleged

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that either of them was prejudiced by the plaintiffs delay. Accordingly, the defense oflaches does not bar the plaintiff from seeking equitable relief.' Wilton Meadows' final ground for its motion to dismiss is that the plaintiff is disguising a motion to remove a fiduciary as an appeal of her motion to reopen and reargue and that the plaintiff should not be permitted to forum shop simply because she disagrees with the prior

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may, upon its own motion or upon the application and remove any fiduciary if: (1) The fiduciary becomes

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incapable of executing such fiduciary's trust, neglects to perform the duties of such fiduciary's trust, wastes the estate in such fiduciary's charge, or fails to furnish any additional or substitute probate bond ordered by the court, (2) lack of cooperation among cofiduciaries substantially ofthe estate, (3) because of unfitness, unwillingness
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failure of the fiduciary to administer the estate effectively, the court determines that removal of the fiduciary best serves the interests of the beneficiaries, or (4) there has been a substantial change of circumstances or removal is requested by all of the beneficiaries, the court finds that removal of the fiduciary best serves the interests of all the beneficiaries and is not inconsistent with a material purpose of the governing instrument and a suitable co fiduciary or successor fiduciary is available." "Whether grounds exist for an executor's removal is a question addressed

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To the extent that this court has subject matter jurisdictionover the plaintiff's claims through its equitable powers, this court need not address the defendants' arguments that motions to reopen and reargue do not apply in the context of appeals from probate decrees or that the time period for filing such motions had expired before the plaintiff brought this action. 13

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n ~ to the sound discretion of the Probate Court. . .. Removal of an executor is an extraordinary I I i!i remedy designed to protect against harm caused by continuing depletion or mismanagement of an ~ ~ l
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. . . In the absence of continuing harm to the interests of the estate and its beneficiaries, (Citation

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removal is not justified merely as punishment for a fiduciary's past misconduct."

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quotation marks ornitted.) Satti v. Kozek, 58 Conn. App. 768, 776, 755 A.2d '

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333, cert. denied, 254 Conn. 928, 761 A.2d 755 (2000). In the present case, Wilton Meadows assumes that because the plaintiff is challenging Caputo's appointment as conservator, she is in fact filing a motion to remove a fiduciary. Nevertheless, as discussed above, the plaintiff has alleged that the probate decree was procured by mistake or fraud and is appealing the decision on that basis. Therefore, there is little merit to of Wilton Meadows that the plaintiff is forum shopping because she happens to be

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appealing to this court to remove Caputo as conservator. Moreover, there is nothing § 45a-242 (a) that provides that such a motion is the exclusive means for removing a fiduciary. Thus, the plaintiff should be not be precluded from seeking equitable relief in this court simply because she might have been able to file a motion to remove a fiduciary. Caputo argues that the plaintiff still can file an application for writ of habeas corpus by an individual subject to guardianship or involuntary representation pursuant to § 45a-705a. Section 45a-705a (a) provides in relevant part: "An individual subject to a guardianship or involuntary representation ... may apply for and is entitled to the benefit of the writ of habeas corpus without having previously exhausted other available remedies including, but not limited to, the right to appeal the order of guardianship or involuntary representation." "A petition for a writ of habeas

corpus brought pursuant to § 45a-705a, by the express terms of subsection (a), is not foreclosed

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II [the plaintiff] previously instructed [her attorney] not to appeal the appointment of a conservator Sullivan v. Ganim,

i H ~ has no bearing on her right to file [a] petition for a writ of habeas corpus." i

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l, Arnold, J.) (48 Conn L. Rptr. 872, 874).

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Superior Court, judicial district of Fair field, Docket No. CV 09 4030012 (December 2,2009,

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In the present case, while the plaintiff technically still can file a petition for a writ of behalf pursuant to § 45a-705a to challenge Caputo's appointment as

Ii habeas corpus on Partch's

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there is nothing in the statute that indicates that she is obligated to do so before she

pursues other remedies. In fact, the statute suggests by negative implication that the plaintiff can elect to use other remedies before filing a petition for a writ in that the plaintiff can file the Even so, the question

petition "without having previously exhausted other available remedies."

as to whether the plaintiff can file a petition for a writ of habeas corpus is irrelevant to the issue

I before the court - whether it has subject matter jurisdiction to hear the plaintiffs claims. Put 'I differently, the question of whether the plaintiff can file a petition for a writ of habeas corpus has
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no bearing on the issue of whether this court has subject matter jurisdiction over the claims that the plaintiffin fact chose to bring. Regardless of whether the plaintiff can file a petition for a

writ of habeas corpus on Partch's behalf pursuant to § 45a-705a, the plaintiff still has the ability to invoke the equitable jurisdiction of this court to the extent that she alleges that the probate decree was procured by mistake or fraud. For the foregoing reasons, the court denies the defendants' motions to dismiss the plaintiff's complaint on the grounds that: (1) no timely appeal was taken by the plaintiff from the decree entered by the probate court on July 27,2010; (2) motions to reopen and reargue are 15

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remove a fiduciary as an appeal of her motion to reopen and reargue. Motions to dismiss are denied.

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