Cocchia v. Testa

206 Conn.App. 634

261 A.3d 90

Francis A. COCCHIA

v.Robert TESTA

AC 44026

Appellate Court of Connecticut.

Argued April 7, 2021

Officially released August 10, 2021

Christopher D. Hite, Stratford, for the appellant (defendant Robert J. Testa, Jr., trustee).

Todd R. Michaelis, Waterbury, with whom was Stephen J. Conover, Stamford, for the appellee (plaintiff).

Moll, Cradle and Clark, Js.

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 postjudgment 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, improperly denied his motion to dismiss. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our disposition of this appeal. In April, 2016, the plaintiff, Francis A. Cocchia, commenced 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 complaint that Testa failed to make payments in accordance with the agreement, and that when the plaintiff commenced 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 reference 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]efendant." 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 contended that (1) "[n]o estate has been opened in Connecticut,"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 substitute was granted, the plaintiff filed an amended complaint 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 operative 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 indemnification 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 conveyance 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 pursuant to General Statutes §§ 52-107 and 52-108 and Practice Book § 9-22.⁶ He contended that the motion to substitute 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]omplaint and [s]ummons is simply insufficient and [Connecticut 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 dismiss 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 decision of Judge Genuario was also appropriate in implicitly 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 nullity. 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...