Opinion
HHDCV146050001S
05-10-2016
Dominic Toce et al. v. Pauline Devino
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#103) AND MOTION TO SUBSTITUTE (#107)
Sheila A. Huddleston, Judge.
This case was commenced in the spring of 2014 by two plaintiffs--a brother and sister--who now admit they lacked standing to bring it. The complaint alleges facts that they now admit are incorrect. It names as defendant the plaintiffs' sister, whom they sued for her alleged actions as executor of their father's estate--a position the plaintiffs now admit she never held. In response to a motion to dismiss, the plaintiffs now move, under General Statutes § 52-109, to substitute the brother, in his capacity as the executor of their father's estate, as the plaintiff. They plan to amend the complaint to add their sister's husband as a defendant and to allege claims relating to the defendant's care of their father before his death in 2010. The court is well aware that § 52-109 is to be liberally construed. Even the most liberal construction of § 52-109, however, does not compel the court to allow the substitution of a new plaintiff to plead new causes of action, to the defendant's prejudice. Accordingly, the motion to substitute is denied and the motion to dismiss is granted.
PROCEDURAL HISTORY
The plaintiffs, Dominic Toce and Julie Toce, are brother and sister. By complaint filed on April 3, 2014, they brought this action against their sister, Pauline Devino, in three counts. In count one, captioned " unjust enrichment, " they allege that their father, Charles Toce, died on or about July 31, 2013; that Devino was named as executor in Charles' will, which directed that his assets be divided equally among his children; that Devino opened an estate for Charles in the Enfield Probate Court; and that she kept all of Charles' assets, causing the plaintiffs to suffer economic losses. In count two, captioned " breach of fiduciary duty, " they incorporate the facts alleged in count one and further allege that, as executor, the defendant owed them a fiduciary duty, which she breached. In count three, captioned " fraud, " the plaintiffs incorporate the allegations of count one and further allege that the defendant falsely represented that there was no money left in Charles' estate at the time of his death.
The parties subsequently informed the court that the date of Charles Toce's death is incorrectly stated in the complaint; he reportedly died on July 31, 2010. For convenience, the court will refer to each of the Toces by their first names hereafter.
On May 28, 2014, the defendant moved to dismiss the complaint, contending that the issues raised were properly within the jurisdiction of the Probate Court. She further sought dismissal of the claims because the allegations in the complaint were directed against her as the executrix, but the summons named her individually, not in a representative capacity.
On June 9, 2014, the plaintiffs objected to the motion to dismiss. They claimed that a review of the Probate Court record would show that the defendant opened an estate after Charles' death in 2010, then made misrepresentations to the Probate Court regarding the estate's property, closed the estate quickly, and failed to provide her siblings with notice. The plaintiffs argued that they brought the lawsuit to recover the estate's property and property that was owed to them by their sister as a fiduciary in the years since the estate was closed.
The motion to dismiss appeared on short calendar a number of times in 2014 but was marked off repeatedly. Then, in November 2015, new counsel appeared for the plaintiffs, and on November 16, 2015, the plaintiffs' new counsel filed a motion to substitute Dominic, in his capacity as executor of Charles' estate, as the sole plaintiff. In the motion, the plaintiffs represented that Dominic had been appointed executor of his father's estate by order of the Probate Court for the District of North Central Connecticut on August 22, 2013--eight months before the plaintiffs filed their complaint alleging that Devino was the executor. A copy of the order appointing Dominic as executor was attached to the motion. The motion to substitute stated that Dominic, as the representative of his father's estate and not as an individual, was the proper person to bring the action.
The motion to substitute additionally stated that the plaintiffs, through prior counsel, had commenced this action on April 3, 2014, mistakenly naming the plaintiffs in their individual capacities and mistakenly referring to Devino as executor of the estate, a position she had never held. The plaintiffs represented that if the motion to substitute were granted, Dominic would move to amend the original complaint to correct the original errors and to assert new claims against Devino, and to add claims against her husband, based on their alleged misuse of Charles' assets before and after his death.
The defendant opposed the motion to substitute, arguing that the motion to dismiss went to this court's subject matter jurisdiction and should be addressed before considering the motion to substitute. She also argued that the plaintiffs' admitted lack of standing deprives this court of jurisdiction to consider their motion to substitute. Finally, she argued that the plaintiffs had also admitted that they had erroneously sued her as executor and now admit that she was never the executor of Charles' estate.
The motions to dismiss and to substitute were first heard at short calendar on December 14, 2015. At that time, the parties provided additional--if conflicting--accounts of the relationships of all the parties. It appears that: (1) Charles was injured in an automobile accident in 2006 and then required either home care or nursing home care; (2) the defendant provided care for him in her home until his death in 2010; and (3) before his death, Charles' home was sold and at least some of the proceeds from the sale were used to pay for his care under a residential home care agreement between Charles and the defendant. The parties also disclosed that there was a pending action in the Probate Court seeking an accounting of funds that the defendant allegedly controlled under a power of attorney for Charles during his lifetime. The court directed the parties to file supplemental briefs on the jurisdictional issue relating to the propriety of bringing claims relating to an estate in Superior Court rather than in Probate Court.
In their supplemental brief dated January 8, 2016, the plaintiffs explained the circumstances surrounding their characterization of Devino as the executor of her father's estate. They represented that the defendant filed an Affidavit in Lieu of Administration, dated August 30, 2010, for the estate of Charles A. Toce. That document, a statutory alternative to probate administration, does not involve the appointment of a fiduciary. They pointed out that the summons named defendant Devino individually, not as a fiduciary of the estate, although the complaint inaccurately described her as the executor of the estate.
The plaintiffs also elaborated on the proposed amended claims they would make if Dominic, in his capacity as executor, is substituted as plaintiff. They represented that they intend to bring claims sounding in breach of contract (apparently based on the alleged residential care agreement), conversion, statutory and civil theft, undue influence, negligence for breach of duty and violation of CUTPA, all of which would relate to the defendant's actions before the death of her father. They would also reframe the claims of unjust enrichment, breach of fiduciary duty, and fraud for her conduct after her father's death, and they would add her husband as a defendant.
In her supplemental brief, the defendant relied on Youngman v. Schiavone, 157 Conn.App. 55, 115 A.3d 516 (2015), to argue that substitution was inappropriate here because, under that case, " substitution is permitted only when the trial court determines that the action was commenced in the name of the wrong plaintiff 'through mistake, ' which properly has been interpreted to mean 'an honest conviction, entertained in good faith and not resulting from the plaintiff's own negligence, that she is the proper person to commence the [action].' " (Emphasis omitted.) Id., 65-66, quoting DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 151, 998 A.2d 730 (2010). The defendant argued that the plaintiffs could not have had a good faith belief that the defendant was the executor of their father's estate when one of the plaintiffs--Dominic Toce--had been appointed executor of the estate just months earlier.
On March 1, 2016, however, the Supreme Court issued its decision in Fairfield Merrittview Ltd . Partnership v. Norwalk, 320 Conn. 535, 133 A.3d 140 (2016). In that case, the court held that the word " mistake" as used in § 52-109 is to be construed expansively, and it is no longer necessary to persuade the trial court that the " mistake" was the result of " an honest conviction, entertained in good faith and not resulting from the plaintiff's own negligence." See id., 553-54 n.21. This court heard supplemental argument from the parties on April 6, 2016, regarding the effect of the Fairfield Merrittview decision on their previous arguments. The plaintiffs argued that Fairfield Merrittview supports their motion for substitution because it is clear that the original complaint was a " mistake" as that term is now construed by the Supreme Court. The defendant argued that Fairfield Merrittview does not require substitution where a defendant will be prejudiced. She also argued that she will be prejudiced by the substitution because substitution of the executor will require a complete change in the causes of action asserted.
ANALYSIS
A
The Motion To Substitute
General Statutes § 52-109 provides: " When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff." Our courts have repeatedly held that § 52-109 is a remedial statute that " must be liberally construed in favor of those whom the legislature intended to benefit." (Internal quotation marks omitted.) Andover Limited Partnership I v. Board of Tax Review, 232 Conn. 392, 396, 655 A.2d 759 (1995). Similarly, our rules of practice " permit the substitution of parties as the interests of justice require . . . These rules are to be construed so as to alter the harsh and inefficient result that attached to the mispleading of parties at common law." (Internal quotation marks omitted.) DiLieto v. County Obstretics and Gynecology Group, P.C., supra, 297 Conn. 150, abrogated in part by Fairfield Merrittview Ltd. Partnership v. Norwalk, supra, 320 Conn. 553 n.20.
An essential assumption underlying the cases liberally construing § 52-109 is that " [t]he defendant rarely, if ever, will be prejudiced [by a § 52-109 substitution], as long as he was fully apprised of the claims against him and was prepared to defend against them ." (Emphasis added; internal quotation marks omitted.) Fairfield Merrittview Ltd. Partnership v. Norwalk, supra, 320 Conn. 553 n.20. " [T]he substituted party is let in to carry on a pending suit, and is not regarded as commencing a new one . . . So far as the defendant is concerned, the same suit upon the same cause of action, under the same complaint and pleadings substantially in most cases, goes forward to its final and legitimate conclusion as if no change had been made." (Internal quotation marks omitted.) Id.
In the peculiar circumstances of this case, it would be impossible for the substituted plaintiff to proceed under the original complaint, because each of its three counts expressly includes and depends upon the allegation that Devino was the executor of her father's estate--which the plaintiffs have now admitted is not and never was true. The plaintiffs propose that, if substitution is granted, they will amend the complaint to add claims relating to her interactions with their father before his death in 2010. That is, they will in essence bring wholly new causes of action against her and will seek to add her husband as a defendant also. Nothing in the present complaint gave the defendant any notice of claims relating to her care of their father during his lifetime or the financial arrangements for that care.
The plaintiffs also contend that they will proceed on the claims in the original complaint in their amended complaint. By that, they apparently mean that they will also challenge the defendant's conduct regarding her father's property after his death. But at the very least, any such claims must be wholly refrained to remove the allegation that the defendant was the executor and to posit some new duty that she owed to them, which duty cannot be based on an allegation of her capacity as executor of the estate. The defendant rightly contends that she would be prejudiced by such a wholesale substitution of a new plaintiff and new causes of action. The motion to substitute is therefore denied.
B
The Motion To Dismiss
The circumstances under which the court now must consider the motion to dismiss are unusual, to say the least. The defendant's original motion to dismiss was based on her claim that the matter should have been brought in Probate Court rather than Superior Court. As presently framed, the complaint alleges that the plaintiffs were harmed by the defendant fiduciary's (1) failure to administer the estate properly, as a result of which the defendant was unjustly enriched; (2) breach of fiduciary duty to the plaintiffs (not to the estate); and (3) fraudulent statements to the plaintiffs concerning the assets of the estate. The plaintiffs seek punitive damages among other forms of relief.
In Geremia v. Geremia, 159 Conn.App. 751, 764-79, 125 A.3d 549 (2015), the Appellate Court rejected a claim that the Probate Court had exclusive jurisdiction over claims of breach of fiduciary duty or unjust enrichment claims relating to an estate. It further held that the Probate Court lacks jurisdiction to award punitive damages. For those reasons, it concluded that a complaint by beneficiaries challenging the actions of fiduciaries of an estate was properly brought in Superior Court. Consequently, the original ground for the motion to dismiss is unfounded, and the motion would be denied if that motion stood alone.
By their motion to substitute, however, the plaintiffs raised the issue of standing, and the defendant subsequently argued that the plaintiffs' complaint should be dismissed for lack of standing. Issues of standing raise questions regarding the court's subject matter jurisdiction and must be addressed whenever and however they are raised. See Geremia v. Geremia, supra, 159 Conn.App. 779 n.17.
The plaintiffs have represented that, as individuals, they lack standing to bring the claims that are genuinely at issue. In support of their motion to substitute, they assert: " The Existing Plaintiffs may have been aggrieved, but their interest in this lawsuit is derivative of the interests of the proper plaintiff, the Estate of Charles A. Toce . . . The matter in dispute relates to the alleged harm caused to Charles A. Toce by Defendant Pauline Devino and Richard M. Devino. The Estate of Charles A. Toce, not the individual beneficiaries of the estate, is the real party in interest. The Executor [Dominic Toce], as the appointed fiduciary of the Estate of Charles A. Toce and not in his individual capacity, is the proper party with standing to serve as a plaintiff in this lawsuit." Plaintiffs' Memorandum of Law in Support of Motion to Substitute, Docket Entry No. 108, p. 5. The plaintiffs have also admitted that Pauline Devino was never a fiduciary of the estate, as alleged in each count of the complaint. See id., p. 2. In view of these characterizations of the claims at issue and these admissions that the plaintiffs lack standing, in their individual capacities, to assert the claims that are genuinely at issue, the case must be dismissed for lack of standing.
CONCLUSION
The plaintiffs' motion to substitute is denied because the substitution would require a wholesale revision of the causes of action asserted, bringing forward claims of which the defendant has had no prior notice. The defendant's motion to dismiss is granted because the plaintiffs have admitted that, in their individual capacities, they lack standing to bring the claims they seek to prosecute.