Opposition Brief — Scott Fenstermaker, Petitioner v. Stephen Fenstermaker, et al.

No. 22-125

In the

Supreme Court of the United States

Scott Fenstermaker

Petitioner,

v.

Stephen Fenstermaker, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the A ppellate Court of Connecticut

BRIEF IN OPPOSITION

Lawrence F. Reilly

The Reilly Law Firm, LLC

90 Grove Street, Suite 110

Ridgefield, Connecticut 06877

(203) 438-3651

David G. Webbert

Counsel of Record

Johnson & Webbert, LLP

160 Capitol Street, Suite 3

Augusta, Maine 04332

(207) 623-5110

dwebbert@work.law

Counsel for Respondents

316277

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

ii

TABLE OF CITED AUTHORITIES

Page

Cases:

Beard v. Kindler,

558 U.S. 53 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Coleman v. Thompson,

501 U.S. 722 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 13

Delehanty v. Pitkin,

76 Conn. 412, 56 A. 881 (1904),

cert. dismissed, 199 U.S. 602 (1905) . . . . . . . . 9, 11, 12

Fenstermaker v. Fenstermaker,

211 Conn. App. 901, 269 A.3d 973 (Mem.) (2022) . . . 7

Fenstermaker v. Fenstermaker,

343 Conn. 915, 274 A.3d 113 (Mem.) (2022) . . . . . . . . 7

Hanson v. Denckla,

357 U.S. 235 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Harris v. Reed,

489 U.S. 255 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Herndon v. Georgia,

295 U.S. 441 (1935) . . . . . . . . . . . . . . . . . . . . . . . . 11, 13

In re Buckingham,

197 Conn. App. 373, 231 A.3d 1261 (2020) . . . . . . 9, 12

iii

Cited Authorities

Page

In re Probate Appeal of Cadle Co.,

129 Conn. App. 814, 21 A.3d 572,

cert. denied, 302 Conn. 914, 27 A.3d 373 (2011) . . . . . 9

Mullane v. Cent. Hanover Bank & Tr. Co.,

339 U.S. 306 (1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

O’Callaghan v. O’Brien,

199 U.S. 89 (1905) . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

Pennoyer v. Neff,

95 U.S. 714 (1877) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Scott Fenstermaker v. PNC Bank, Nat’l Ass’n,

No. 3:17-CV-778 (JAM), 2018 WL 1472521

(D. Conn. Mar. 26, 2018) . . . . . . . . . . . . . . . . . . . . . . . . 3

Silverstein v. Laschever,

113 Conn. App. 404, 970 A.2d 123 (2009) . . . . . . . . . 10

Wolfe v. North Carolina,

364 U.S. 177, 80 S. Ct. 1482, 4 L.Ed.2d 1650 (1960) . . 13

Statutes and Other Authorities”

12 Del. C. § 1311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

12 Del. C. § 3546 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Conn. Gen. Stat. § 45a-128 . . . . . . . . . . . . . . . . . . . . . . . 13

iv

Cited Authorities

Page

Conn. Gen. Stat. § 45a-128(a) . . . . . . . . . . . . . . . . . passim

Conn. Gen. Stat. § 45a-186 . . . . . . . . . . . . . . . . . . . 1, 5, 10

Conn. Gen. Stat. § 45a-186(a) . . . . . . . . . . . . . . . . . . . . . 10

Conn. Gen. Stat. § 45a-187 . . . . . . . . . . . . . . . . . . . . . . . . 10

Conn. Gen. Stat. § 45a-187(a) . . . . . . . . . . . . . . . . . . . . . . 5

Conn. Gen. Stat. § 45a-273 . . . . . . . . . . . . . . . . . . . passim

Conn. Gen. Stat. § 45a-282 . . . . . . . . . . . . . . . . . . . . . 5, 10

1

INTRODUCTION

The decisions below dismissed Petitioner Scott

Fenstermaker’s case solely on state-law grounds. His

federal constitutional arguments were not properly

presented in the courts below, and those courts did not

attempt to resolve them. Thus, this Court has no basis on

which to consider the questions raised by Fenstermaker

about the constitutionality of Conn. Gen. Stat. § 45a-273

or § 45a-128(a).

As laid out in the Superior Court decision below,

Fenstermaker was dissatisfied with the outcome of a 2018

probate action under section 45a-273 involving his father’s

2016 Last Will and Testament. He could have raised his

constitutional arguments and otherwise challenged that

final probate decree by (1) filing in that 2018 action an

application for reconsideration with the probate court

under Conn. Gen. Stat. § 45a-128(a), or (2) appealing the

2018 decree to the Superior Court under Conn. Gen. Stat.

§ 45a-186. Fenstermaker chose not to exercise either of

those options. Instead, he waited eleven months and then

filed a brand-new action with the probate court seeking

to admit an old, revoked 1997 Will to probate. Relying on

settled Connecticut law, the probate court found that it

lacked statutory authority to entertain such a request and

correctly dismissed Fenstermaker’s action.

Fenstermaker tries to resuscitate his case by

arg uing that the Connecticut courts should have

construed his second probate action as an application for

reconsideration—filed 11 months later—of the original

probate decree under section 45a-128(a). But that plea

for relief from his own failure to file a timely request for

2

reconsideration is a matter of Connecticut procedural

law, not a federal constitutional question. And it has

nothing to do with whether the procedures established by

section 45a-128(a) are constitutionally adequate when they

are followed. In short, the federal constitutional issues

raised by the Petition would not properly be before the

Court if certiorari were granted.

STATEMENT

1. Fenstermaker is a New York litigation attorney

representing himself in this case. See Appellant’s

Appendix in the State of Connecticut Appellate Court,

p.9 (hereinafter “A.___”).1 He is the adopted son of the

decedent, Lloyd Fenstermaker (“Lloyd” or “the decedent”).

Lloyd had two other children, respondents Martha

Czymmek and Stephen Fenstermaker. As described

below, in and before 2016 Fenstermaker intentionally

soiled and terminated his relationship with his father. As

a result, Lloyd worked with two different lawyers in 2016

to disinherit Fenstermaker and ensure that upon his death

his assets would be distributed in equal one-third shares

to his other two children, Stephen and Martha, and to his

daughter-in-law, Linda (Fenstermaker’s estranged wife).

To accomplish these goals, Lloyd executed new Wills and

had an inter vivos trust established that similarly divided

his assets between Stephen, Martha, and Linda.

When the decedent, then a Delaware resident,

executed the last Will and Trust in November 2016, his

attorney invoked Delaware’s “pre-mortem” will and trust

1. All references to an Appendix refer to the Appellant’s

Appendix filed with the State of Connecticut Appellate Court.

3

validation statutes, 12 Del. C. §§ 1311 and 3546. A.184190. Notwithstanding Fenstermaker’s odd interpretation

of those statutes, what they actually do is establish an

extremely limited statute of limitations (120 days) for

any unhappy heir to file a will contest. That short filing

deadline increases the chances that the testator will

still be alive and available to personally dispel any will

challenge. Thus, Fenstermaker was sent copies of his

father’s newest 2016 Will and inter vivos Trust shortly

after they were signed. A.184-85. Lloyd then relocated

to Connecticut.

2. Soon thereafter in 2017, Fenstermaker sued his

father Lloyd, his sister Martha, and the trustee of the

inter vivos trust in the federal district court in Connecticut

trying, inter alia, to contest Lloyd’s new 2016 Will and

accusing his father of intentionally inflicting emotion

distress upon him by disinheriting him in the 2016 Will.

See Scott Fenstermaker v. PNC Bank, Nat’l Ass’n, No.

3:17-CV-778 (JAM), 2018 WL 1472521 (D. Conn. Mar.

26, 2018) (the Federal Action). Lloyd’s attorney obtained

and filed sworn Affidavits from Lloyd, A.50-59, from the

lawyer who drafted Lloyd’s November 28, 2016 Will and

Trust, A.173-178, from Lloyd’s primary care physician,

A.180-182, and even from a previous lawyer who drafted

and oversaw the execution of two earlier Wills in 2016,

A.127-130. 2 These witnesses attested to the Lloyd’s sound

mind, the lack of any undue influence, Lloyd’s clear wishes

to disinherit Fenstermaker, and the proper execution of

the November 28, 2016 Will and the prior 2016 Wills. Id.

2. T wo of the Wills had to be re-executed to correct

typographical and scrivener’s errors. The last was prepared because

the decedent decided to incorporate the use of a trust in his estate

planning. This was all explained in the attorneys’ affidavits filed in

the Federal Action.

4

Lloyd’s affidavit describes why he disinherited

Fenstermaker. With regret for airing such matters

publicly, he discussed Fenstermaker’s history of

psychiatric problems and Fenstermaker’s public praise of

the 9/11 attacks. A.54-56. Lloyd also provided two emails

the Fenstermaker sent to him in April 2016 stating inter

alia:

I ask that you cease communications with me.

I’ve taken your shit for 53 years. As of today, I

will no longer do so. Goodbye.

[P]lease cease communicating with me. Any

further communications from you will be

ignored. Goodbye.

A.55, 100, 102, 106-111. Despite these caustic remarks,

Lloyd attempted to contact Fenstermaker two more times

by sending cards. Fenstermaker returned both unopened

cards to his father in large envelopes addressing his father

as “Mr. Lloyd Fensterfuck.” A.55, 104.

On March 26, 2018, the district court granted

defendants’ motions for summary judgment and dismissal.

Unfortunately, since Lloyd had relocated from Delaware

to Connecticut, the Delaware pre-mortem statutes did

not have dispositive effect.

3. Lloyd passed away on June 11, 2018. Under his last

estate plan, his assets had been transferred into the inter

vivos trust and his estate therefore had no assets. On June

26, 2018, Martha Czymmek, the nominated Executrix

of the November 28, 2016 Will, commenced proceedings

under Conn. Gen. Stat. § 45a-273 for the expedited

5

settlement of small estates. That case was assigned

docket number 18-0399. A.24. The probate court’s final

decree entered on August 27, 2018. Decedent’s estate

then totaled $158.03 (representing two small credit card

refunds received while #18-0399 was pending), which was

consumed by funeral costs leaving no assets to distribute.

The matter was closed. A.211-12.

Fenstermaker acknowledges that he was notified of

his father’s death in July 2018. A.8, fn.1. From the Federal

Action, Fenstermaker knew that his father resided in

Ridgefield, Connecticut and that Martha was nominated

Executrix of the November 28, 2016 Will. From discovery

in the Federal Action, Fenstermaker had copies of the

November 28, 2016 Will and decedent’s prior 2016 Wills,

all of which disinherited him. And Fenstermaker admitted

visiting the probate court and personally reviewing the

court’s file for #18-0399 in November 2018, well within

the 1-year appeal period for the August 2018 final decree.

A.10, par. 20. That file, of course, contained the August

2018 final decree.

Despite knowing of his father’s death, Fenstermaker

did not file the old 1997 Will with the probate court

as required by Conn. Gen. Stat. § 45a-282, nor did he

otherwise alert the probate court to his claim of conflicting

wills. He did not enter an appearance in #18-0399 despite

knowing of his father’s death in July while that case was

pending. He did not appeal from the August 2018 final

decree of the probate court in #18-0399 despite learning

of it within the one-year statutory appeal period under

Conn. Gen. Stat. §§ 45a-186 and 45a-187(a). He did not

file an application for reconsideration or reargument in

#18-0399 under to Conn. Gen. Stat. § 45a-128(a). In sum,

he filed nothing in connection with #18-0399.

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4. On July 16, 2019, nearly one year after the probate

court entered its final decree closing Lloyd’s estate in #180399, Fenstermaker filed a new action in probate court

petitioning for the probating of the decedent’s old, revoked

1997 will. A.509-512. That new filing in the probate

court was assigned docket #19-0444. With that petition,

Fenstermaker sent the probate court a letter stating,

inter alia: “I am writing to initiate a probate proceeding

regarding the Estate of Lloyd J. Fenstermaker, date of

death, June 11, 2018 . . . .” A.544-545 (emphasis added).

In response to Martha Czymmek’s motion for summary

judgment, the probate court issued a decree dated October

28, 2019 (which Fenstermaker erroneously describes as

“without opinion”) stating:

After due hearing, THE COURT FINDS that:

Notice of hearing was given to all

interested parties in accordance with

the order of notice previously entered.

The Will dated January 22, 1997

was revoked by a later Will dated

November 28, 2016.

T he l at e r W i l l n a me d M a r t h a

Czymmek as fiduciary.

THE COURT FURTHER FINDS that:

The estate was properly handled and

fully administered as a Affidavit

in Lieu of Administration and was

closed on August 27, 2018.

7

And it is ORDERED AND DECREED that:

The petition for admission of a copy of

the Will dated January 22, 1997 and

issuance of letters testamentary to

Scott Fenstermaker is hereby denied.

A.19 (emphasis added).

On or about December 3, 2019, Fenstermaker appealed

from the decision in #19-0444 to the Connecticut Superior

Court. Paragraph 1 of Fenstermaker’s Complaint stated:

“This is an appeal of the October 28, 2019 Decree . . . of

the Court of Probate, Northern Fairfield County, District

No. PD45 . . . in the matter of the Estate of Lloyd J.

Fenstermaker, Docket Number #19-0444.” A.8.

After a motion for summary judgment was fully

briefed, the superior court rendered judgment in favor

of the defendants, concluding that under Connecticut

law the probate court had no jurisdiction to entertain

Fenstermaker’s submission of the old 1997 Will because to

do so would be irreconcilable with the prior decree entered

in #18-0399 on the newer Will. A.551-94; Fenstermaker

v. Fenstermaker, No. DBDCV205015863S, 2021 WL

1400928, at *15-18. The Superior Court also expressly

rejected Fenstermaker’s claim that his filing in #19-0444

was actually an application for reconsideration under

Conn. Gen. Stat. § 45a-128(a). Fenstermaker, 2021 WL

1400928, at *13-15. And the Superior Court agreed with

the probate court’s finding that the 1997 Will had been

revoked in any event. Id. at *1, *11, *16.

Fenstermaker appealed to the Connecticut appellate

court. The appellate court heard argument on February

8

23, 2022, and affirmed the superior court in a per curiam

memorandum decision on March 8, 2022. Fenstermaker v.

Fenstermaker, 211 Conn. App. 901, 269 A.3d 973 (Mem.)

(2022). Fenstermaker then filed a request for certification

to the Connecticut Supreme Court, which was denied on

May 10, 2022. Fenstermaker v. Fenstermaker, 343 Conn.

915, 274 A.3d 113 (Mem.) (2022). This petition followed.

ARGUMENT

1. As explained above, the only case on appeal is

#19-0444, Fenstermaker’s application to probate the old

revoked will. The decisions below in case #19-0444 are

correct and do not properly present any issue of federal

law. Thus, Fenstermaker’s first question presented—

regarding a possible due process violation arising from

Connecticut’s “small estate” probate process—is purely

academic.

a. Although probate docket #18-0399 was a “small

estate” proceeding under Conn. Gen. Stat. §45a-273, this

is not an appeal from the judgment in that case or from

any other case under that statute. Rather, this is an appeal

from probate docket #19-0444—Fenstermaker’s separate

action seeking to admit a revoked will to probate nearly

a year after the final decree was entered in #18-0399.

While Fenstermaker attempted to argue about the

constitutionality of section 45a-273 in connection with

#19-0444, see Fenstermaker, 2021 WL 1400928, at *5-6,

the courts below ultimately dismissed the action based on

well-established Connecticut law, see id. at *18. Thus, the

decisions below are not within this Court’s jurisdiction.

See, e.g., Harris v. Reed, 489 U.S. 255, 260 (1989) (“This

9

Court long has held that it will not consider an issue of

federal law on direct review from a judgment of a state

court if that judgment rests on a state-law ground that is

both “independent” of the merits of the federal claim and

an “adequate” basis for the court’s decision.” (citations

omitted)); see also Coleman v. Thompson, 501 U.S. 722,

729 (1991) (“We are not permitted to render an advisory

opinion, and if the same judgment would be rendered by

the state court after we corrected its views of federal

laws, our review could amount to nothing more than an

advisory opinion” (citation omitted)).

b. Fenstermaker’s attempt to probate the old revoked

will in #19-0444 was rejected because probate courts in

Connecticut do not have jurisdiction under Connecticut law

to enter decrees that would directly attack decrees entered

in previous cases. In re Buckingham, 197 Conn. App. 373,

380–81, 231 A.3d 1261, 1267 (2020); Delehanty v. Pitkin,

76 Conn. 412, 56 A. 881, 885 (1904), cert. dismissed, 199

U.S. 602 (1905). “The Probate Court is a court of limited

jurisdiction prescribed by statute, and it may exercise only

such powers as are necessary to the performance of its

duties. As a court of limited jurisdiction, it may act only

when the facts and circumstances exist upon which the

legislature has conditioned its exercise of power. Such a

court is without jurisdiction to act unless it does so under

the precise circumstances and in the manner particularly

prescribed by the enabling legislation.” In re Buckingham,

197 Conn. App. at 378 (quoting In re Probate Appeal of

Cadle Co., 129 Conn. App. 814, 820, 21 A.3d 572, cert.

denied, 302 Conn. 914, 27 A.3d 373 (2011)) (cleaned up).

Under firmly established Connecticut law, the superior

court on an appeal from the probate court does not exercise

10

the power of a traditional court of common law jurisdiction.

Silverstein v. Laschever, 113 Conn. App. 404, 409, 970 A.2d

123, 127 (2009). Instead, it “sits as the court of probate”

and “exercises the powers, not of a constitutional court

of general or common law jurisdiction, but of a Probate

Court.” Id. (cleaned up). So the Superior Court had no

more jurisdiction to grant Petitioner’s application than

did the probate court below. The later appeals to the

Connecticut Appellate Court and Connecticut Supreme

Court could only answer the question whether the trial

court, acting as a probate court, correctly decided the

narrow issue in #19-0444.

c. Had Fenstermaker raised all his objections to

#18-0399 “in the manner particularly prescribed” by the

Connecticut probate statutes, id., perhaps the Connecticut

courts would have considered and decided Fenstermaker’s

federal constitutional claims, and perhaps a writ of

certiorari would be colorable here. Fenstermaker had

numerous procedural opportunities under Connecticut

law to bring his federal claims before the state court in

a proper and timely manner. He could have alerted the

probate court to the existence of the 1997 Will under

Conn. Gen. Stat. § 45a-282 while #18-0399 was pending.

He could have filed a motion for reconsideration of the

probate court’s final decree in #18-0399 under Conn.

Gen. Stat. § 45a-128(a). Or he could have filed an appeal

from the final decree in #18-0399 under Conn. Gen. Stat.

§§ 45a-186, 45a-187. 3

3. The normal appeal period for most probate appeals in

Connecticut is 45 days from the date the decree is mailed out.

Conn. Gen. Stat. 45a-186(b). But in ex parte cases such as #180399, Connecticut law allows appeals within twelve months from the

decree. Id. §45a-187. Petitioner knew of the final decree in #18-0399

11

But Fenstermaker failed to pursue any of the allowed

options below for properly and timely raising his federal

claims in #18-0399. Instead, he chose to commence a

new action (#19-0444) seeking a probate court decree

that would directly undermine a prior probate court

decree entered in another case (#18-0399). Thus, the only

question presented to the courts below in the pending case

was whether the probate court in #19-0444 had subject

matter jurisdiction under Connecticut law to consider

Fenstermaker’s application under those circumstances.

The answer, according to the relevant Connecticut

statutes and over 100 years of Connecticut case law, is no.

See Delehanty, 56 A. at 883. Accordingly, the courts below

did not have occasion to pass upon Fenstermaker’s federal

constitutional arguments and did not do so. This Court

may not do so either. See Herndon v. Georgia, 295 U.S.

441, 442-43 (1935) (finding constitutional objections to a

state court’s decision unreviewable where the objections

were not preserved in state court “as the settled rules of

the state practice require”).

d. The Connecticut Supreme Court’s ruling in

Delehanty v. Pitkin, 76 Conn. 412, 56 A. 881 (1904), is

dispositive of Fenstermaker’s case under Connecticut

law. In Delehanty, the petitioner attempted to submit

for probate a February 1899 will of the decedent 4 years

after the probate court had already accepted for probate

the decedent’s December 1898 Will. On review, the court

assumed the truth of the petitioner’s allegations: that the

Will offered by the petitioner was the decedent’s true last

Will, that the executors of the older Will had fraudulently

well within that extended appeal period, yet chose to file nothing in

connection with that case.

12

destroyed the real Will, and that the petitioner did not

know of the existence of the real Will until after the

probate court entered its final decree accepting the older

Will. Id. at 884-85. Despite these compelling allegations,

the Court held that the petitioner’s case failed for lack of

jurisdiction. The court reasoned that the probate court has

only limited power to reverse its prior decrees, and that

the legislature provided a right of appeal from probate

decrees. Because the petitioner’s action constituted an

impermissible attack on the prior probate decree, it was

beyond the limited powers of the probate court. Id.

The Connecticut Appellate Court recently reaffirmed

the holding in Delehanty. “Presently, just as in 1904, there

is no statute conferring broad jurisdiction on the Probate

Court to adjudicate a direct attack on its prior decrees

for any reason. . . . [O]ur Supreme Court›s conclusion in

Delehanty remains relevant in the present day: In the

absence of a specific statutory exception, the Probate

Court does not have subject matter jurisdiction to set aside

its prior decrees, even for fraud.” In re Buckingham, 197

Conn. App. at 380–81. Fenstermaker here has replicated

the defect in Delehanty by trying to file a second will after

a decree had already entered in a prior case regarding

another will of the same decedent. Thus, Delehanty and

its progeny are dispositive of Fenstermaker’s case under

Connecticut law.

In sum, the constitutionality of Conn. Gen. Stat. § 45a273 cannot properly be raised here since this is an appeal

from #19-0444, which was not a “small estate” proceeding

under section 45a-273 and which did not purport to decide

the constitutionality of section 45a-273. Thus neither the

merits of the decree in #18-0399 nor the propriety of

13

the proceedings under Conn. Gen. Stat. § 45a-273 are

before this Court. Fenstermaker’s attempts to make

this issue sound interesting—for example, by falsely

alleging missing assets—are factually wrong, but more

importantly, they miss the point: This is an appeal from

#19-0444, which did not apply section 45a-273 or opine on

its constitutionality.

2. Fenstermaker’s second question presented about

Section 45a-128(a) is even more hypothetical. As the

superior court found, Fenstermaker never filed a motion

for reconsideration under Conn. Gen. Stat. § 45a-128(a)

in either #18-0399 or #19-0444. Fenstermaker, 2021

WL 1400928, at *13-15. The record has no ruling on any

motion for reconsideration. Nor is there any proceeding

or decision under § 45a-128(a) for this Court to review. In

fact, the first time Fenstermaker even mentioned § 45a128 was in his briefing opposing the motion for judgment

in the superior court when the case was already on appeal

from the probate court.

a. Fenstermaker’s attempt to argue about the

constitutionality of Conn. Gen. Stat. § 45a-128(a),

assuming hypothetically that such a motion had been

filed in #18-0399, is an improper academic exercise. See

Herndon, 295 U.S. at 442-43; cf. Coleman, 501 U.S. at 729

(discussing the prohibition on advisory opinions). To the

extent that Fenstermaker claims the courts below erred

in characterizing his filings under Connecticut law, that

question is not subject to review in this Court. See, e.g.,

Beard v. Kindler, 558 U.S. 53, 60-61, (2009) (affirming that

even discretionary procedural rulings by state courts can

serve as an adequate, independent state-law grounds for

a decision); Wolfe v. North Carolina, 364 U.S. 177, 193-

14

95, 80 S. Ct. 1482, 1491-92, 4 L.Ed.2d 1650 (1960) (finding

a state procedural decision an adequate, independent

state-law ground where it relied on “well-established local

procedural rules”).

b. Even if Fenstermaker had filed in #18-0399 an

application for reconsideration under Conn. Gen. Stat.

§45a-128(a), the precedents of this Court make clear that

the statute provides the necessary “full right to assail” the

decree. O’Callaghan v. O’Brien, 199 U.S. 89, 118 (1905).4

Conn. Gen. Stat. §45a-128(a) provides:

(a) Except as provided in subsection (e) of this

section, any order or decree made by a court

of probate ex parte may, in the discretion of

the court, be reconsidered and modified or

revoked by the court. Reconsideration may be

made on the court’s own motion or, for cause

shown satisfactory to the court, on the written

application of any interested person. Such

motion or application shall be made or filed

before any appeal has been allowed or after

withdrawal of all appeals which have been

allowed. For the purposes of this section, an

ex parte order or decree is an order or decree

entered in a proceeding of which no notice is

required to be given to any party and no notice

is given.

On its face, section 45a-128(a) permits the probate

court to exercise its discretion, for good cause shown,

to reconsider, modify, or revoke its prior decrees, and

4. Petitioner cites this case as Farrell v. O’Brien.

15

it provides that right explicitly for ex parte decrees

entered in a “proceeding of which no notice is required

to be given to any party and no notice is given.” Id.

The statute explicitly provided Fenstermaker with the

procedural means to request that the decree in #18-0399

be revoked or modified. This of course was in addition to

Fenstermaker’s ability to file an appeal from the decree in

#18-0399. Thus, the Connecticut legislature has provided

at least two means by which “full and adequate probate

remedies are provided by which interested parties may

subsequently, within a time fixed by law, be heard in the

probate proceedings to question the existence of a will or

its probate.”’ O’Callaghan, 199 U.S. at 118.

c. The federal due process cases cited by Fenstermaker

are inapposite. Pennoyer v. Neff, 95 U.S. 714 (1877),

concerned whether a state court had personal jurisdiction

over a nonresident defendant who did not have actual

notice of a civil suit within its territory. That case has

no bearing on the question whether interested parties

have been given an adequate opportunity to be heard

in a probate proceeding, as Fenstermaker was here,

“irrespective of whether the notice on the preliminary

probate had or had not been given.” O’Callaghan, 199

U.S. at 118. Equally irrelevant is Hanson v. Denckla, 357

U.S. 235, (1958), which considered “whether [a] Florida

[court] erred in holding that it had jurisdiction over the

nonresident defendants” and whether a Delaware court

erred “in refusing full faith and credit” to a Florida

judgment. Hanson, 357 U.S. at 243. Unlike Pennoyer and

Hanson, this case does not present questions of personal

jurisdiction.

In Mullane v. Cent. Hanover Bank & Tr. Co., 339

U.S. 306 (1950), the Court considered “the constitutional

16

sufficiency of notice to beneficiaries on judicial settlement

of accounts by the trustee of a common trust fund

established under the New York Banking Law.” Id. at

307. Ultimately, the decision hinged on whether or not

service of notice by publication in a newspaper met

minimum federal constitutional standards for personal

jurisdiction. Id. at 309-310, 315, 319-20. Here, the question

is not whether Fenstermaker had actual notice or was

given constitutionally sufficient notice of the original

probate proceeding, #18-0399. Fenstermaker’s own

formulation of the question concedes that he had notice:

“Whether Section 45a-128(a) of the Connecticut General

Statutes[] . . . as applied to the facts of the instant matter,

provides full right to assail the no-notice administration of

a decedent’s estate to cure any United States Constitution

Fourteenth Connecticut property rights.”

3. Fenstermaker’s Petition does not present any

“compelling reasons” and it does not satisfy any of the

Court’s guidelines under Rule 10 for when petitions for

certiorari will be granted. The judgment below was

rooted in the settled state-law principle that Connecticut

probate courts cannot enter a new decree which would

eviscerate a decree entered in a previous case. The state

court decisions below reflect no discussion of or ruling

on any federal question—let alone an important federal

question that should be settled by the Supreme Court

or that conflicts with a decision of a state court of last

resort, a decision of a United States Court of Appeals,

or the relevant decisions of this Court. So nothing in the

judgment below or in the Petition for a Writ of Certiorari

warrants review by this Court.

17

CONCLUSION

The fatal flaw in Fenstermaker’s Petition is that he

failed to avail himself of appropriate remedies expressly

provided to him by the Connecticut probate statutes. He

could have, but did not, appeal from the decision in #180399—the only decision made under Conn. Gen. Stat.

§ 45a-273. He also could have, but did not, ask the court

in #18-0399 to reconsider, modify, or revoke its decree

under Conn. Gen. Stat. § 45a-128(a). Instead, he sought

to assert his claim through a procedurally-improper

means, that is, by commencing a new action attempting

to admit an old will for probate 11 months after entry of

the prior decree in another probate case. Thus, he failed

to properly raise his federal constitutional claims in the

state courts below. For that obvious reason, the judgment

below rested solely on state law grounds based on longsettled Connecticut law. Fenstermaker is attempting to

use this Court’s jurisdiction as an end-run around the now

expired appeal period for #18-0399 or to revive claims

that were properly thrown out for obvious procedural and

jurisdictional defects under state law.

The salacious (and false) accusations scattered

throughout the petition for certiorari were injected

by Fenstermaker in an attempt to add curb appeal to

meritless claims that have been rejected by the federal

district court, and the Connecticut probate court, superior

court, Appellate Court, and Supreme Court. This case

certainly does not belong before the Supreme Court of

the United States. Fenstermaker was disinherited by

his father for his cruel and abusive behavior, and his

father saw to it that his share of the Estate would go to

support Fenstermaker’s estranged wife and daughters.

18

The probate court administered the estate accordingly.

In this posture, Fenstermaker cannot show that this was

error, let alone error of federal constitutional magnitude.

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Lawrence F. Reilly

The Reilly Law Firm, LLC

90 Grove Street, Suite 110

Ridgefield, Connecticut 06877

(203) 438-3651

David G. Webbert

Counsel of Record

Johnson & Webbert, LLP

160 Capitol Street, Suite 3

Augusta, Maine 04332

(207) 623-5110

dwebbert@work.law

Counsel for Respondents