Geremia v. Geremia

159 Conn.App. 751

125 A.3d 549

William P. GEREMIA et al.

v.Joseph D. GEREMIA et al.

No. 36848.

Appellate Court of Connecticut.

Argued April 8, 2015.

Decided Sept. 15, 2015.

Daniel H. Kennedy III, Rocky Hill, for the appellants (plaintiffs).

Christopher Kylin, for the appellees (defendants).

GRUENDEL, SHELDON and WEST, Js.

GRUENDEL, J.

The plaintiffs, William P. Geremia and Valerie M. Geremia, appeal from the judgment of the trial court granting the motion to dismiss filed by the defendants, Joseph D. Geremia, Niki Geremia, Douglas J. Geremia, Linda Geremia, and David A. Geremia.¹ The court concluded that it lacked subject matter jurisdiction over the various causes of action alleged in the plaintiffs' complaint due to the doctrine of primary jurisdiction. On appeal, the plaintiffs challenge the propriety of that determination. We affirm in part and reverse in part the judgment of the trial court.

The procedural posture of this case governs our recitation of the facts underlying the appeal. "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Kawecki v. Saas, 132 Conn.App. 644, 648, 33 A.3d 778 (2011). "[L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.... When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light.... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.... In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ... the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint.... Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts].... If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings."² (Citations omitted; emphasis omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651–52, 974 A.2d 669 (2009).

The following facts and procedural history of this acrimonious intrafamily dispute are relevant to this appeal. On September 9, 2009, Margaret Geremia executed a power of attorney naming her two sons, William and Douglas, as her attorneys in fact. For more than ten years, William had assisted Margaret with her financial affairs and day-to-day needs. He continued to serve as her primary caretaker after the power of attorney was executed.

On September 24, 2010, William underwent a major medical procedure that required hospitalization. While William was recovering from that procedure, Margaret suffered a series of mini-strokes, which impaired her ability to live alone in her North Haven home. As a result, Margaret moved into the home of Douglas and his wife, Linda, in Wallingford. She continued to reside at either that home or the home of her grandson, Joseph,³ and his wife, Niki, until her death in December, 2012.

On October 23, 2010, Linda assumed control of Margaret's financial affairs at the behest of Douglas, who suffers from dyslexia and is illiterate. Linda exercised control of Margaret's checkbook, from which she wrote checks, made withdrawals and handled all banking transactions on behalf of Margaret. Beginning on March 1, 2011, the plaintiffs allege, the defendants acted knowingly and wrongfully to financially benefit themselves at the expense of Margaret and her estate, while conspiring to unduly influence her into believing that the plaintiffs were appropriating her assets for their own personal use. On March 15, 2011, Joseph and Niki unsuccessfully attempted to have Margaret's power of attorney revoked. On that date, Margaret was brought to multiple banks, where the vast bulk of her liquid assets were withdrawn and deposited into accounts belonging to Douglas and Linda. Soon thereafter, Douglas took Margaret to meet with Attorney Andrew Knott, where she then revoked her existing power of attorney. At that time, Margaret was in her nineties and suffered from dementia and a diminished capacity.

In response, William filed an application with the Probate Court seeking an involuntary conservatorship for Margaret. Following multiple hearings, the court in September, 2011, decreed that Margaret was not competent to handle her own financial affairs. Aided by her legal counsel, Margaret agreed to the appointment of a conservator on her behalf. The court thus appointed Attorney Johanna P. Fazzone as conservator of Margaret's person and estate. Fazzone soon resigned from that role prior to taking control of any of Margaret's assets. In so doing, Fazzone advised the court that the parties were making demands well beyond what was represented to her by those parties prior to her appointment. The court accepted Fazzone's resignation and appointed Attorney Peter Boorman as a successor conservator.

Upon taking control of Margaret's assets, Boorman noted four separate transactions in which a total of $15,000 had been withdrawn from her account after the appointment of a conservator. When Boorman demanded that Douglas and Linda return those funds, they refused. Boorman thereafter petitioned the court for permission to report the withdrawals to criminal authorities for further investigation. At a May 22, 2012 hearing on that petition, Douglas and Linda admitted that they had assisted Margaret in making the aforementioned withdrawals. They further apprised the court that Margaret presently had $8928 stored in a bureau drawer at their home. In response, the court suggested that the parties "drive down right now" to secure those funds. As the defendants' attorney later stated, "everyone agreed the money was going to go to the conservator" when the May 22, 2012 hearing concluded.

When Boorman attempted to retrieve the funds that day in accordance with the court's directive, he was physically assaulted by Joseph, and police were called to the home.⁴ By order dated June 21, 2012, the court accepted Boorman's resignation as conservator of Margaret's person and estate. Attorney Katrina Camera later was appointed as a successor conservator.

Months earlier, the plaintiffs' counsel had sent a letter to the Probate Court, indicating that he "will be asking the court to issue orders in regards to the items listed below: [a] [t]he conversion and/or theft of monies from [Margaret] to various family members in the approximate amount of $29,000. [b] [t]he removal of many items of personal property belonging to [Margaret] by family members from [Margaret's] real property without permission from this court and/or the conservator. [c] [t]he removal of items of personal property from [Margaret's] real property which items belong to [William and Valerie]. [d] [t]he sale of [Margaret's] real estate. [e] [t]he need to remove [Margaret's] checkbook from the control and possession of [Linda]. [f] [Margaret's] life insurance policies and the disposition of the cash value removed from any life policy. [g] [w]hether or not credit cards have been opened in [Margaret's] name with the assistance of any [family members and;] [h] [t]he establishment of a set meeting date and time for [William] to visit with his mother, [Margaret], outside the presence of any other family members."

Appended to the operative complaint is the Probate Court's September 27, 2012 ruling thereon.⁵ In that written decision, the court expressly rejected the plaintiffs' challenge to certain financial transactions that transpired prior to the appointment of the conservator. As it stated: "The court breaks down the claim of [the plaintiffs] to two time frames, one for transactions occurring prior to the finding that a conservator was to be appointed for Margaret, and one for transactions occurring after the finding that a conservator was to be appointed.... The court approaches the application from this standpoint, as it believes the differing circumstances require separate showings by a party seeking to attack the transactions. Prior to the court accepting the stipulation of the parties that a conservator should be appointed for Margaret ... Margaret had every right to spend her money as she saw fit, and the court would require the party seeking to establish probable cause to attack any transactions in this time frame to prove at a heightened burden that the transaction was accomplished using undue influence upon Margaret or otherwise not the free act of [her]. The court believes this claim is akin to a claim of undue influence in a will contest. The proponent needs to proffer evidence tending to show that the free will and independence of Margaret was overcome by the control of someone such that Margaret was constrained to do what was against her will, unable to refuse and too weak to resist." The court concluded that the plaintiffs had not satisfied that burden. Because Margaret "had the right to expend her funds as she saw fit prior to being conserved," the court rejected the plaintiffs' challenge to those transactions that transpired prior to the September, 2011 appointment of a conservator.

Turning its attention to subsequent transactions, the court noted that "by decree dated June 19, 2012, the court found that Douglas and...