Altman v. DiPreta
A plaintiff who files an appeal from a Probate Court is not required to comply with Practice Book §8-1(a), which exempts probate appeals from certain process requirements. In May 2013, the Probate Court awarded the defendant, Richard DiPreta, $25,535 for his services as a conservator of the estate of Jeanne Altman. Altman’s child, who is the conservator of his mother’s person, appealed and argued that the costs for the defendant’s services were excessive. The plaintiff filed a complaint and a civil summons on Form JD-CV-1. The defendant moved to dismiss and argued that Form JD-CV-1 is not prescribed for probate appeals and that the plaintiff did not provide a recognizance of a third party for costs, pursuant to Practice Book §8-4(a). The court found that use of Form JD-CV-1 is improper for appeals pursuant to Connecticut General Statutes §45a-186, and that the use of the form constituted an insubstantial defect that did not require dismissal. "[N]o summons is necessary for an appeal brought pursuant to General Statutes §45a-186," wrote the court, "and service by the plaintiff of an improperly drafted summons is a circumstantial defect that should not and does not defeat the plaintiff’s cause of action." Ruling on the plaintiff’s motion to amend, to include a recognizance that complies with Practice Book §8-4, the court found that this constituted a circumstantial defect that could be cured. The plaintiff’s amended summons and complaint were sufficient to provide the defendant with notice of the plaintiff’s appeal from probate. The marshal’s failure to include an address also constituted a circumstantial defect, and the court denied the defendant’s motion to dismiss.