Am. Tax Funding, LLC v. Design Land Developers of Newtown, Inc.

200 Conn.App. 837

240 A.3d 678

AMERICAN TAX FUNDING, LLC

v.DESIGN LAND DEVELOPERS OF NEWTOWN, INC., et al.

AC 42074

Appellate Court of Connecticut.

Argued December 4, 2019

Officially released October 20, 2020

Paul N. Gilmore, Hartford, for the appellant (defendant estate of Francis D. D'Addario).

David L. Gussak, Farmington, with whom, on the brief, was Gary J. Greene, for the appellee (substitute plaintiff).

Keller, Elgo and Eveleigh, Js.

EVELEIGH, J.

The defendant estate of Francis D. D'Addario (estate)¹ appeals from the judgment of the trial court rendered in favor of the substitute plaintiff, Reoco, LLC (Reoco).² On appeal, the estate claims, inter alia, that the court improperly granted Reoco's motion for judgment on default with respect to two counts of the amended complaint, which sought an in personam money judgment against the estate for the 2005 and 2006 taxes due on the subject property. For the following reasons, we dismiss the appeal and vacate the judgment of the trial court as against the estate.

The following facts and procedural history are relevant to our resolution of this appeal. The estate owned a 120.26 acre parcel of land located at 2 Buttonshop Road in Newtown (property). The estate failed to pay municipal property taxes to the town of Newtown (town) for the 2004, 2005 and 2006 tax years. Consequently, the town imposed tax liens on the property and recorded them in the town land records. The town subsequently assigned the tax liens to American Tax Funding, LLC (American Tax Funding), which recorded the assignments in the town land records.

American Tax Funding commenced this foreclosure action on May 4, 2011. The complaint contained three counts, which sought the foreclosure of a tax lien for each of the respective tax years. The summons listed the estate as a defendant, and on the address line, it included "c/o F. Lee Griffith, III, Co-Executor, 1 Canterbury Green, 201 Broad Street, Stamford, CT 06901; c/o Albert F. Paolini, Co-Executor, 551 Morehouse Road, Easton, CT 06612; c/o David D'Addario, Lawrence D'Addario & Lawrence Schwartz, Co-Executors, 10 Middle St., #1402, Bridgeport, CT 06604." The return of service indicates that service on the estate was executed by service on David D'Addario, as coexecutor.³

On June 23, 2014, Reoco filed a withdrawal of counts two and three of the complaint and, subsequently, filed a request to amend the complaint on July 23, 2014. The amended complaint sought the foreclosure of the 2004 tax lien and the collection of the 2005 and 2006 taxes. On September 2, 2014, Reoco filed a motion for default for failure to plead with respect to the estate, which was granted on September 10, 2014. Thereafter, Reoco filed a motion for a default judgment regarding counts two and three only—the collection counts for tax years 2005 and 2006. On November 20, 2014, the estate filed a motion to set aside the default and an answer containing special defenses to counts two and three. On November 26, 2014, the estate filed an objection to Reoco's motion for a judgment on the default.

The court granted Reoco's motion for a default judgment on December 4, 2014, and rendered judgment in favor of Reoco as against the estate as to counts two and three of the amended complaint.⁴ The estate filed a motion to reargue on which the trial court did not rule. Reoco subsequently withdrew the remaining count of the complaint seeking the foreclosure on the 2004 municipal tax lien. The estate timely filed this appeal.

After the parties filed their appellate briefs⁵ and oral argument was held, on March 19, 2020, this court, sua sponte, ordered the parties to file supplemental briefs addressing the following questions: "[1] whether the estate ... as opposed to a representative of the estate, has standing to invoke the jurisdiction of this court, and, [2] if not, what the remedy should be with regard to the trial court judgment." After the parties filed supplemental briefs,⁶ this court, on July 14, 2020, ordered the parties to file further supplemental briefs with respect to the follow question: "Did the trial court lack subject matter jurisdiction over this case because the [estate] is not a legal entity that has the capacity to be sued?" On August 13, 2020, the parties filed their second set of supplemental briefs. In its brief, Reoco claims that this case "presents a factual situation [that] may be addressed under the statutory umbrella of [General Statutes] § 52-123, which provides for the correction of a circumstantial defect such as" the one presented in this case.⁷ In contrast, the estate argues that, even though the trial court did not lack subject matter jurisdiction to render a judgment against the estate, this court should determine that the trial court's judgment against the estate is a nullity. The estate further claims, in both of its supplemental briefs, that, because the judgment against it is a nullity, no practical relief can be provided by this court and that, therefore, this court lacks subject matter jurisdiction over the appeal on the ground of mootness. We conclude that, because the present action was brought against the estate itself and not a representative of the estate, there was nothing in the record clearly indicating that the executor, and not the estate, was the real party in interest, and no motion to substitute has ever been filed, the trial court lacked jurisdiction to render judgment against the estate.

We begin our analysis by setting forth the relevant standard of review. "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. ... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction .... [T]his court has often stated that the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time." (Internal quotation marks omitted.) World Business Lenders, LLC v. 526-528 North Main Street, LLC , 197 Conn. App. 269, 273–74, 231 A.3d 386 (2020). "[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ... [and] [t]he court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Bialobrzeski , 123 Conn. App. 791, 798, 3 A.3d 183 (2010) ; see also Carten v. Carten , 153 Conn. 603, 610, 219 A.2d 711 (1966). "If it becomes apparent to the court that such jurisdiction is lacking, the appeal must be dismissed." (Internal quotation marks omitted.) M.U.N. Capital, LLC v. National Hall Properties, LLC , 163 Conn. App. 372, 374, 136 A.3d 665, cert. denied, 321 Conn. 902, 136 A.3d 1272 (2016).

Moreover, because mootness implicates this court's subject matter jurisdiction, it may be raised at any time, including by this court sua sponte, and is a threshold matter that must be resolved first. See State v. Charlotte Hungerford Hospital , 308 Conn. 140, 143, 60 A.3d 946 (2013) ; Commissioner of Transportation v. Rocky Mountain, LLC , 277 Conn. 696, 703, 894 A.2d 259 (2006). "This is so because [i]t is a [well settled] general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow." (Internal quotation marks omitted.) Argent Mortgage Co., LLC v. Huertas , 288 Conn. 568, 575, 953 A.2d 868 (2008). "Because mootness implicates subject matter jurisdiction, it presents a question of law over which our review is plenary." (Internal quotation marks omitted.) In re Kamari C-L ., 122 Conn. App. 815, 823, 2 A.3d 13, cert. denied, 298 Conn. 927, 5 A.3d 487 (2010).

For this court to determine whether there is any practical relief that can be afforded the estate in its appeal from the judgment rendered against it, we must first examine the issue of whether the trial court had jurisdiction to render the judgment against the estate.⁸ "It is elemental that in order to confer jurisdiction on the court the [party] must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue. ... An estate is not a legal entity. It is neither a natural nor artificial person, but is merely a name to indicate the sum total of the assets and liabilities of the decedent or incompetent. ... Not having a legal existence, it can neither sue nor be sued." (Citations omitted; internal quotation marks omitted.) Isaac v. Mount Sinai Hospital , 3 Conn. App. 598, 600, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985) ; see also Estate of Rock v. University of Connecticut , 323 Conn. 26, 32, 144 A.3d 420 (2016) ; Ellis v. Cohen , 118 Conn. App. 211, 215, 982 A.2d 1130 (2009).

In the present case, American Tax Funding brought this action and named the estate as a defendant in the complaint. The summons lists the estate as a party, and the return of service demonstrates that service on the estate was executed by serving David D'Addario, as coexecutor.⁹ The complaint, however, did not name any of the coexecutors of the estate as parties in their representative capacities. Additionally, Reoco never amended the complaint to name the coexecutors of the estate in the action, and the coexecutors have not been named in the estate's appeal to this court, nor do their names appear on any of the appellate materials. This appeal was filed by Attorney Paul N. Gilmore on behalf of the estate.¹⁰ All materials filed by the appellant have been submitted under the name, and on behalf, of the estate. Accordingly, the present case does not present a situation in which the file is replete with references to the coexecutors,¹¹ or where the coexecutors effectively...