Cocchia v. Testa ( 2021 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
FRANCIS A. COCCHIA v. ROBERT TESTA
(AC 44026)
Moll, Cradle and Clark, Js.
Syllabus
The plaintiff sought to recover damages from the defendant T, who had
agreed to indemnify the plaintiff from certain liability, following T’s
alleged default on that indemnification agreement. After T’s death, the
trial court granted the plaintiff’s motion to substitute R, the trustee of
a trust to which T had transferred certain real property, as a defendant.
The plaintiff then filed an amended two count complaint, alleging in
one count that T had breached the indemnification contract with the
plaintiff and, in the second count, that R, as trustee, had fraudulently
accepted the conveyance of the real property to the trust, knowing that
T was indebted to the plaintiff. The court defaulted R for failure to
appear and rendered judgment in favor of the plaintiff, awarding him
damages. The court thereafter denied R’s motion to dismiss the action
on the basis that the court lacked personal jurisdiction over him, and
R appealed to this court. Held that the trial court properly denied R’s
motion to dismiss, as it had personal jurisdiction over R; although the
court cited R into the case pursuant to the plaintiff’s motion to substitute
the defendant, that motion was effectively a motion to add R as a new
and separate party under the theory of liability that R was a fraudulent
transferee of T’s assets, as the motion identified R by name and in his
capacity as trustee and alleged that the trust received assets from T in
order to place those assets beyond the plaintiff’s reach, and the operative
complaint, with which R was served, did not seek to recover from R
for breach of the underlying indemnification agreement but alleged only
that R was liable as a fraudulent transferee.
Argued April 7—officially released August 10, 2021
Procedural History
Action to recover damages for breach of contract,
and for other relief, brought to the Superior Court in
the judicial district of Stamford-Norwalk, where the
court, Kavanewsky, J., granted the plaintiff’s motion
to substitute Robert J. Testa, Jr., trustee of the Karen
M. Testa Separate Property Trust, as a defendant; there-
after, the plaintiff filed an amended complaint; subse-
quently, the defendant Robert J. Testa, Jr., trustee, was
defaulted for failure to appear, and the court, Genuario,
J., after a hearing in damages, rendered judgment for the
plaintiff; thereafter, the court, Hon. Taggart D. Adams,
judge trial referee, denied the motion to dismiss filed
by the defendant Robert J. Testa, Jr., trustee, and the
defendant Robert J. Testa, Jr., trustee, appealed to this
court. Affirmed.
Christopher D. Hite, for the appellant (defendant
Robert J. Testa, Jr., trustee).
Todd R. Michaelis, with whom was Stephen J. Con-
over, for the appellee (plaintiff).
Opinion
CLARK, J. The defendant Robert J. Testa, Jr., trustee
(trustee) of the Karen M. Testa Separate Property Trust
(trust), appeals from the trial court’s denial of his post-
judgment motion to dismiss the action in which a
default judgment had been rendered against him. On
appeal, the defendant claims that the trial court lacked
personal jurisdiction over him and, therefore, improp-
erly denied his motion to dismiss. We affirm the judg-
ment of the trial court.
The following undisputed facts and procedural his-
tory are relevant to our disposition of this appeal. In
April, 2016, the plaintiff, Francis A. Cocchia, com-
menced the present action against the now deceased
defendant Robert Testa (Testa) to enforce an agreement
between them. The plaintiff alleged that on June 30,
2009, Testa had agreed to indemnify him from liability
on a mortgage and note the plaintiff had signed in favor
of a bank. Testa allegedly owed the plaintiff $196,500
under that agreement, payable in monthly installments
of $1444.76. The plaintiff alleged in a single count com-
plaint that Testa failed to make payments in accordance
with the agreement, and that when the plaintiff com-
menced the present action, Testa owed $165,298.67,
plus interest, the costs of collection, and attorney’s fees.
In April, 2017, while the case was pending, Testa and
his wife, Karen Testa, were killed in a car accident in
Arizona. Following Testa’s death, no activity occurred
in the case until February 6, 2018, when the plaintiff
filed a request for leave to amend his complaint, seeking
to add a count against the trust. The first count of the
proposed amended complaint incorporated by refer-
ence the sole count in the original complaint. The newly
added second count alleged a fraudulent transfer of
assets between Testa and the trust. Specifically, in the
second count, the plaintiff incorporated the allegations
of the first count and alleged that Testa had transferred
real property he owned in Arizona to the trust in 2015,
while indebted to the plaintiff, in a knowing effort to
defraud the plaintiff and to deprive him of assets in
the event he obtained a judgment against Testa. The
plaintiff sought monetary damages and to set aside the
conveyance of the real property to the trust.
One year later, on February 6, 2019, the plaintiff filed
a motion titled ‘‘Motion to Substitute Defendant’’ in
which he moved, pursuant to Practice Book § 9-18,1 to
‘‘substitute [the trustee] of the [trust] as the [d]efen-
dant.’’ In his motion, the plaintiff claimed that Testa
had fraudulently conveyed property to the trust in order
to place it outside the plaintiff’s reach, and further con-
tended that (1) ‘‘[n]o estate has been opened in Connect-
icut,’’2 (2) the plaintiff had a pending action against
‘‘the various [d]efendants, including the [trustee]’’ in
Arizona, and (3) ‘‘[t]he [d]efendants therein are
attempting to avoid the [p]laintiff’s debt by claiming
the instant action in Connecticut is the controlling case
or venue.’’ The court, Kavanewsky, J., granted the
motion to substitute on February 19, 2019. The clerk’s
office removed Testa as a party from the court’s docket
sheet on February 25, 2019. After the motion to substi-
tute was granted, the plaintiff filed an amended com-
plaint on April 12, 2019, which became the operative
complaint. The operative complaint incorporated by
reference to the original complaint a breach of contract
claim against Testa in count one. In addition, the opera-
tive complaint alleged a fraudulent transfer claim in
count two, this time against the trustee rather than the
trust.3 Specifically, it alleged that the trustee, rather
than the trust, was aware of Testa’s debt and knowingly
aided, abetted, and conspired with Testa in accepting
the conveyance of the Arizona property for a fraudulent
purpose. The return date for the operative complaint
was April 23, 2019.
The plaintiff subsequently filed with the court a return
of service indicating that the summons and operative
complaint were served on the trustee in Arizona on
March 27, 2019, by way of in hand personal service.4
When the trustee did not file a timely appearance, the
plaintiff filed a motion for default against him for failure
to appear on April 26, 2019. The clerk granted the
motion for default on May 14, 2019. Thereafter, the
pleadings were closed, and the court, Genuario, J., held
a hearing in damages on July 18, 2019. On August 28,
2019, the court issued a memorandum of decision.
In its decision, the court found that the plaintiff had
testified credibly that Testa was indebted to him in the
total amount of $206,348 pursuant to the indemnifica-
tion agreement. The court recognized that the trustee
was not a party to that agreement but found that,
because the trustee had been defaulted, he had admitted
the allegations of the operative complaint’s second
count, namely, that Testa had conveyed property to
the trust for the purpose of placing assets out of the
plaintiff’s reach while indebted to the plaintiff, and that
the trustee, knowing of the debt, accepted the convey-
ance on behalf of the trust for that fraudulent purpose.
The court thus found that the Arizona property transfer
was fraudulent and made for the purpose of concealing
assets from the plaintiff. The court rendered judgment
in favor of the plaintiff in the amount of $206,348 on
the first count and in favor of the plaintiff and against
the trustee on the second count.
On December 27, 2019, the trustee moved to dismiss
the action.5 In the motion to dismiss, the trustee claimed
that the court lacked personal jurisdiction over him
because he was not properly cited into the case pursu-
ant to General Statutes §§ 52-107 and 52-108 and Prac-
tice Book § 9-22.6 He contended that the motion to sub-
stitute was not a proper vehicle for making him a party
because he was not, and was not alleged to have been,
a fiduciary for Testa, who was deceased at the time the
motion was filed. He further argued that ‘‘attempting
to add a new party by means of an [a]mended [c]om-
plaint and [s]ummons is simply insufficient and [Con-
necticut courts have] dismissed cases for failure to
properly cite in an additional party defendant.’’ Lastly,
the trustee claimed that (1) the court had never granted
the plaintiff leave to amend his complaint prior to filing
the motion to substitute, (2) the summons and operative
complaint that were served on him did not match the
one attached to the plaintiff’s request to amend, (3) the
plaintiff had selected ‘‘a completely arbitrary return
date,’’ and (4) Testa’s counsel did not receive notices
from the court because he had been removed from the
docket sheet by the clerk’s office following Testa’s
death.7
The plaintiff objected to the motion to dismiss on
the merits of the trustee’s procedural claims but did
not argue that the motion was untimely. The court,
Hon. Taggart D. Adams, judge trial referee, summarily
sustained the plaintiff’s objection to the motion to dis-
miss on February 21, 2020. The trustee subsequently
moved for an articulation. In response, the court
explained: ‘‘[T]he court . . . sustained the objection of
the plaintiff to the defendant’s motion to dismiss after
reading and considering the motion and objection and
hearing oral argument on the subject on [February 10,
2020], because it found the order of Judge Kavanewsky
granting the motion to substitute [the trustee] as [the]
defendant to be appropriate as well as the order of
default as to [the trustee] to be appropriate. The deci-
sion of Judge Genuario was also appropriate in implic-
itly finding the service of process on [the trustee] to
be valid, and there is little evidentiary support for the
argument that the return of service was not accurate
. . . .’’ This appeal followed.
On appeal, the trustee makes just one claim: the trial
court improperly denied his postjudgment motion to
dismiss for lack of personal jurisdiction because he was
not properly cited in as a defendant.8 Specifically, he
claims that the court improperly added him to the case
pursuant to the plaintiff’s motion to substitute, rather
than by way of a motion to cite in an additional party,
and that the motion to substitute was effectively a nul-
lity. As a result, he argues that the court never had
personal jurisdiction over him.9 For the reasons that
follow, we disagree.
We begin by setting forth the applicable standard of
review. ‘‘The standard of review for a court’s decision
on a motion to dismiss . . . is well settled. . . . A
motion to dismiss tests . . . whether, on the face of
the record, the court is without jurisdiction. . . . [O]ur
review of the court’s ultimate legal conclusion and
resulting [determination] of the motion to dismiss will
be de novo.’’ (Internal quotation marks omitted.) Izzo
v. Quinn, 170 Conn. App. 631, 636, 155 A.3d 315 (2017).
‘‘A challenge to the personal jurisdiction of the trial
court is a question of law, requiring that we employ a
plenary standard of review.’’ Thompson Gardens West
Condominium Assn., Inc. v. Masto, 140 Conn. App.
271, 278, 59 A.3d 276 (2013).
On appeal, the trustee argues the trial court lacked
personal jurisdiction over him because he was never
properly cited into the case as a party. He points out
that he was added pursuant to the plaintiff’s ‘‘motion
to substitute’’ and that he did not meet the criteria for
a substituted party under General Statutes § 52-599.10
The plaintiff counters that the motion to substitute was
‘‘inaptly titled’’ and was, in effect, a request to add the
trustee as a new and distinct party defendant on the
newly added second count of the operative complaint
alleging a fraudulent transfer against the trustee. He
urges us to look at the context and substance, not the
name, of the motion. We agree with the plaintiff.
‘‘In certain circumstances, this court previously has
looked beyond the label of a motion to reclassify it
when its substance did not reflect the label applied by
the moving party.’’ Santorso v. Bristol Hospital, 308
Conn. 338, 351, 63 A.3d 940 (2013); see also Whalen v.
Ives, 37 Conn. App. 7, 17, 654 A.2d 798 (functional effect
of motion was determinative), cert. denied, 233 Conn.
905, 657 A.2d 645 (1995). In the present case, it is plain
from the content and substance of the ‘‘motion to substi-
tute’’ that the plaintiff was asking the court to add the
trustee as a defendant in this matter solely on the basis
of his alleged liability as a fraudulent transferee of Tes-
ta’s assets. The inaptly titled ‘‘motion to substitute’’
identified the trustee by name and in his capacity as
trustee of the trust. It went on to allege that the trust
had received assets from Testa ‘‘in order to place these
assets beyond the reach of the plaintiff.’’ The motion did
not allege that the trustee was a party to the underlying
indemnification agreement between the plaintiff and
Testa or seek to ‘‘substitute’’ the trustee for Testa as
the party liable to the plaintiff under the terms of that
agreement. After the court granted the motion, the
plaintiff filed and served the operative complaint on
the trustee. Consistent with the substantive allegations
in the inaptly titled ‘‘motion to substitute,’’ the operative
complaint did not seek to recover from the trustee
for breach of the underlying indemnification agreement
between the plaintiff and Testa. It alleged only that
the trustee is liable to the plaintiff in count two as a
fraudulent transferee.11
The trustee cites various cases in which parties
improperly sought to add a party by simply amending
a complaint. Those cases are inapposite because in each
of those cases, and unlike the present case, a party
failed to seek and to obtain from the court permission to
add a new party prior to serving an amended complaint
naming that party as a new defendant.
We conclude that the inaptly titled ‘‘motion to substi-
tute’’ was, in effect, a motion to add the trustee as a
new and separate party under a different theory of
liability. Because the court granted that motion and
the trustee was subsequently served with the operative
complaint, the court had personal jurisdiction over him.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Practice Book § 9-18 provides in relevant part: ‘‘The judicial authority
may determine the controversy as between the parties before it, if it can do
so without prejudice to the rights of others; but, if a complete determination
cannot be had without the presence of other parties, the judicial authority
may direct that they be brought in. If a person not a party has an interest
or title which the judgment will affect, the judicial authority, on its motion,
shall direct that person to be made a party. . . .’’
2
The record does not reflect that the plaintiff petitioned the Probate Court
to open an estate pursuant to General Statutes § 45a-316. Section 45a-316
provides in relevant part: ‘‘Whenever, upon the application of a creditor or
other person interested in the estate of a deceased person, it is found by
the court of probate having jurisdiction of the estate that the granting of
administration on the estate . . . will be delayed, or that it is necessary
for the protection of the estate of the deceased, the court may, with or
without notice, appoint a temporary administrator to hold and preserve the
estate until the appointment of an administrator or the probating of the
will. . . .’’
3
‘‘[A]s a general rule, the trustee is a proper person to sue or be sued on
behalf of a trust.’’ (Internal quotation marks omitted.) Day v. Seblatnigg,
186 Conn. App. 482, 499, 199 A.3d 1103 (2018), cert. granted, 331 Conn. 913,
204 A.3d 702 (2019).
4
Although the trustee challenged the sufficiency of service of process in
the trial court, on appeal he does not challenge the trial court’s finding that
there was ‘‘little evidentiary support for the argument that the return of
service was not accurate . . . .’’
5
The trustee also filed a motion to open, vacate, and set aside the judgment,
in which he raised several procedural claims. The plaintiff objected on the
merits of the trustee’s procedural claims and on the ground that the motion
to open was untimely under Practice Book § 17-4. The court, Hon. Taggart
D. Adams, judge trial referee, summarily sustained the plaintiff’s objection
to the motion to open on January 22, 2020. The trustee has not appealed
from that order, and it is not relevant to the present appeal.
6
General Statutes § 52-107 provides: ‘‘The court may determine the contro-
versy as between the parties before it, if it can do so without prejudice to
the rights of others; but, if a complete determination cannot be had without
the presence of other parties, the court may direct that such other parties
be brought in. If a person not a party has an interest or title which the
judgment will affect, the court, on his application, shall direct him to be
made a party.’’
General Statutes § 52-108 provides: ‘‘An action shall not be defeated by
the nonjoinder or misjoinder of parties. New parties may be added and
summoned in, and parties misjoined may be dropped, by order of the court,
at any stage of the action, as the court deems the interests of justice require.’’
Practice Book § 9-22 provides: ‘‘Any motion to cite in or admit new parties
must comply with Section 11-1 and state briefly the grounds upon which it
is made.’’
7
Though the same lawyer represented both Testa and the trustee in the
trial court, the trustee does not explain how he was prejudiced by the
removal of Testa from the case prior to the time his lawyer appeared in the
case on his behalf. The trustee is a separate party, was served in hand and
had an independent responsibility to appear and defend.
8
We note that the trustee has not appealed from the denial of the motion
to open the judgment. See footnote 5 of this opinion. As a general matter,
we cannot afford an appellant practical relief when the judgment has not
been opened. The present case, however, is analogous to Weinstein &
Wisser, P.C. v. Cornelius, 151 Conn. App. 174, 177–79, 94 A.3d 700 (2014),
in which this court allowed an appeal to proceed under similar factual
circumstances.
In that case, the defendant filed simultaneous postjudgment motions to
dismiss and to open a default judgment. Id., 177. The trial court denied the
motion to open and then denied the motion to dismiss on the ground that
the case would have to be opened before that motion could be considered.
Id., 177–78. The defendant appealed only from the denial of the motion to
dismiss, to which the plaintiff raised a mootness challenge. Id., 178. The
defendant argued that the appeal was not moot because the challenge he
raised in the motion to dismiss would have rendered the judgment void and
obviated the need for a motion to open. Id.
This court decided that the failure to appeal from the denial of the motion
to open was not fatal, stating that ‘‘[i]n this case . . . the issue of mootness
is inextricably intertwined . . . with the issue raised by the defendant on
appeal . . . . The motions asserted the same grounds and sought very simi-
lar relief. In order to avoid a mootness challenge, the defendant properly
should have appealed from the denial of the motion to open. But in the
unusual circumstances of this case, where the two grounds of decision are
by no means independent . . . it would doubtlessly exalt form over sub-
stance to avoid considering the merits of the appeal because the defendant
appealed from the wrong ruling.’’ (Citations omitted; internal quotation
marks omitted.) Id., 179; see also Josephine Towers, L.P. v. Kelly, 199 Conn.
App. 829, 835, 238 A.3d 732 (‘‘[a]lthough technically the court should have
ruled on the motion to open before any other motion was entertained, the
nearly simultaneous filing and consideration of the two motions in this case,
together with the identity of issues presented . . . compel the conclusion
that declining to address the merits of the motions would be a hypertechnical
elevation of form over substance,’’ citing Weinstein), cert. denied, 335 Conn.
966, 240 A.3d 281 (2020). On the basis of this precedent, we conclude that
the trustee’s failure to appeal from the denial of his motion to open is not
fatal to his appeal in this case.
9
The trustee also suggests in his brief that the plaintiff’s failure to substi-
tute Testa’s estate at any point following his death ‘‘arguably’’ deprived the
court of subject matter jurisdiction to enter any subsequent orders in the
case. Following oral argument in this appeal, this court, sua sponte, ordered
supplemental briefing on the issue of whether the trial court had subject
matter jurisdiction to act on the plaintiff’s motion to substitute the trustee
in light of Barton v. New Haven, 74 Conn. 729, 730, 52 A. 403 (1902), and
its progeny. Those cases hold that ‘‘[d]uring the interval . . . between the
death and the revival of the action by the appearance of the executor or
administrator, the cause has no vitality. The surviving party and the court
alike are powerless to proceed with it.’’ Id., 730–31; see also, e.g., Burton
v. Browd, 258 Conn. 566, 571, 783 A.2d 457 (2001); Worden v. Francis, 170
Conn. 186, 188, 365 A.2d 1205 (1976); Boucher Agency, Inc. v. Zimmer, 160
Conn. 404, 407–408, 279 A.2d 540 (1971); Negro v. Metas, 110 Conn. App.
485, 498, 955 A.2d 599, cert. denied, 289 Conn. 949, 960 A.2d 1037 (2008);
Schoolhouse Corp. v. Wood, 43 Conn. App. 586, 590, 684 A.2d 1191 (1996),
cert. denied, 240 Conn. 913, 691 A.2d 1079 (1997); Bomstein v. Boucher
Agency, Inc., 5 Conn. Cir. 121, 122, 245 A.2d 296 (1968). Having received
and considered the supplemental briefs, we conclude that the court had
subject matter jurisdiction at the time it acted on the plaintiff’s motion to
substitute. Barton and the decisions that have followed hold that a ‘‘cause’’
by or against a single, deceased party is abated until such time as a proper
fiduciary is substituted for the deceased party. They do not stand for the
proposition that a court loses subject matter jurisdiction over an entire case
for all purposes, including separate causes against parties other than the
deceased, until a fiduciary is substituted for a deceased party. Such a rule
would be wholly inconsistent, for example, with General Statutes § 52-600,
which provides in relevant part: ‘‘If there are two or more plaintiffs or
defendants in any action, one or more of whom die before final judgment,
and the cause of action survives to or against the others, the action shall
not abate by reason of the death. . . .’’
10
General Statutes § 52-599 provides in relevant part: ‘‘(a) A cause or right
of action shall not be lost or destroyed by the death of any person, but
shall survive in favor of or against the executor or administrator of the
deceased person.
‘‘(b) A civil action or proceeding shall not abate by reason of the death
of any party thereto, but may be continued by or against the executor or
administrator of the decedent. . . . If a party defendant dies, the plaintiff,
within one year after receiving written notification of the defendant’s death,
may apply to the court in which the action is pending for an order to
substitute the decedent’s executor or administrator in the place of the
decedent, and, upon due service and return of the order, the action may
proceed. . . .’’
11
Judge Genuario clearly recognized the nature of the trustee’s involve-
ment. The plaintiff filed a motion for reconsideration on September 6, 2019,
contesting the monetary value of the judgment. In denying relief, the court
stated in relevant part that ‘‘[t]he defendant is not the maker of the note or
the estate of the maker of the note. To the extent the plaintiff is seeking
payment from a fraudulent transferee of property, he is seeking payment
from a tortfeasor and not a contracting party.’’ (Emphasis added.)