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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,1to dismiss the plaintiff’s action. The

defendant sought dismissal on the ground that the Probate Court lacked jurisdiction over the parties’ dispute

because it was barred by the applicable statute of limitations. 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 General 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 determined 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 relevant to ourresolution of the plaintiff’s claims. Following

the decedent’s death on December 14, 2011, the defendant 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 reimbursement 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 pertaining 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 defendant 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 determine whether they were eligible for removal. The Probate 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, Superior 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 plaintiff previously had filed an affidavit pursuant to § 45a98a (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 § 45a98a (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, concluding that the ‘‘the retention of jurisdiction [by] the

Probate Court [over] various claims and the refusal to

release them forjury trial in the Superior Court pursuant

to . . . [§] 45a-98a was within the jurisdiction of the

Probate Court. As a result, an appeal pursuant to [General Statutes §§] 45a-186 and [45a-187] was the appropriate 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 unambiguous 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 unpalatable conclusion is that such orders cannot be appealed

because they are not authorized by the applicable statute.’’ ‘‘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 apparent conflict between a provision in § 45a-186 (a)indicating 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 immediately 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 ‘‘memorialize 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 legislative 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 legislature 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 incorrectly 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 jurisdiction. . . . 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 jurisdiction, ‘‘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 whetherit 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 Probate Court determined that it did have jurisdiction, the

plaintiff’s only recourse was to file an appeal in accordance 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 limitations 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 reasons, 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 interpretation of § 45a-186 is de novo.

‘‘When construing a statute, [o]ur fundamental objective 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 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 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 fortaking

and prosecuting the appeal must be met.’’ State v. Goggin, 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 quotation 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 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 complaintin 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 forfiling 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 appellant’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 commenced 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 specific terms covering the given subject matter will prevail

over general language of the same or another statute

[that] might otherwise prove controlling. . . . The provisions of one statute [that] specifically focus on a particular problem will always, in the absence of express

contrary legislative intent, be held to prevail over provisions of a different statute more general in its coverage.’’

(Internal quotation marks omitted.) Housatonic Railroad 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 amendment 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 Statutes (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 ProbateCourt was commenced by motion

to that court. Although no particular form was prescribed 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 Statutes (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 statute 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 perfected 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 decision 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 indicated, filed another appeal following the issuance of

the Probate Court’s written decision, which is presently

pending in the judicial district of Waterbury. Ourresolution 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, Eveleigh, 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 priorto 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 jurisdiction. 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, administrators, 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 renders 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.