Opinion
No. FSTCV06-5001250
July 25, 2011
Memorandum of Decision on Motion to Dismiss (No. 221) and Objection Thereto (No. 223)
Procedural/Factual Background
In this foreclosure action the original plaintiff Option One Mortgage Corporation on October 5, 2006 filed an amended complaint against Michael Treglia, Patrick Treglia, Robert Treglia and Paul Miller, trustee as assignee for Norwalk Radiology. The defendant, Patrick Treglia, filed an answer and a five-count counterclaim on September 11, 2009. Option One assigned the action, subject note and subject mortgage deed to Wells Fargo Bank, N.A. and, on September 23, 2009, filed a motion to substitute Wells Fargo Bank, N.A. as the plaintiff in the action which was granted on October 5, 2009. On February 4, 2011, the plaintiff withdrew its complaint without prejudice as to all defendants (No. 220) and withdrew this action (No. 220.55). The only remaining claims in the case are the counterclaims of the defendant. The plaintiff's mortgage, however, remains unreleased on the Norwalk Land Records, and plaintiff remains unwilling to release the mortgage or cancel the underlying note. (Tr. 12.)
For consistency, the parties will be referred to by their original designations of "defendant" and "plaintiff," even though technically the defendant is the counterclaim plaintiff and the plaintiff is the counterclaim defendant.
In his counterclaim the defendant, Patrick Treglia, alleges that he is an heir at law of his deceased mother Edna N. Treglia (hereinafter, "decedent"). The first count sounds in negligence and alleges that on August 29, 2002, the decedent quitclaimed a portion of her interest in real property to her son, the defendant Robert Treglia. The deed was prepared by Attorney Alan P. Link, the lender's counsel. On that same date, it is alleged, the decedent and the defendant's brother Robert Tregglia executed a promissory note for $175,000 in favor of the original plaintiff Option One Mortgatge Corp. To secure that debt, the decedent and the defendant's brother executed a mortgage on the property. Atty. Link allegedly represented the lender, and the borrowers, the decedent and the defendant's brother Robert at the closing. At the closing, the decedent also executed a second quitclaim deed, which Link prepared and which purported to convey the remainder of the decedent's interest in the property to the defendant's brother Robert. Defendant Patrick Treglia alleges that Link as agent of Option One failed to disclose fully to the decedent the terms of the note and mortgage and that he had a confidential relationship with the lender. Moreover, Link allegedly failed to advise the decedent of the legal consequences of the conveyances to the defendant's brother Robert and of the execution of the note and mortgage. "As a direct and proximate result of the plaintiff's agent's negligence and failure to act, the Defendant (Patrick Treglia), who has succeeded to the Decedent's interest in the Premises, has suffered significant and continuing monetary damages."
The two quitclaim conveyances to Robert Treglia were invalidated by jury verdict before Judge David Tobin on July 11, 2006 at the consolidated trial of Michael Treglia v. Robert Treglia, Superior Court, Judicial District of Stamford-Norwalk at Stamford, Docket No. FSTCV 03 0197643S and Patrick Treglia v. Robert Treglia, Superior Court, Judicial District of Stamford/Norwalk at Stamford, Docket No. FSTCV04-4001713S. The jury found that the defendant's brother had exercised undue influence over the decedent in the transactions and imposed a constructive/resulting trust in favor of the heirs of Edna Treglia. The court has reviewed the docket sheets of both those cases and notes that no motion to dismiss was filed in either case. Apparently the defendant Robert Treglia did not question the standing of his brothers Michael and Patrick to maintain those actions.
In the second count, the defendant seeks a declaratory judgment that the decedent suffered from diminished mental capacity at the time of the transaction, making it impossible for her to convey title to the property. In the third and fourth counts, the defendant seeks a resulting trust and a constructive trust, respectively, for the benefit of the defendant and the other heirs of the decedent. The defendant alleges that the conveyance never should have been made given the undue influence exercised upon the decedent by the defendant's brother and the failure of Link to represent properly the decedent and her interests. In the fifth count, the defendant alleges that the making of the note and mortgage to the decedent violated the Connecticut Unfair Trade Practices Act (CUTPA), Conn. Gen. Stat. § 42-110a et seq.
On March 14, 2011, the plaintiff filed a motion to dismiss the defendant's counterclaims on the ground that the defendant lacks standing, thereby depriving the court of subject matter jurisdiction over the counterclaims. The plaintiff filed a memorandum of law in support of its motion. On March 31, 2011, the defendant filed a memorandum of law in opposition to the motion to dismiss, to which the plaintiff filed a reply memorandum one day later. The matter was heard on the foreclosure short calendar on April 4, 2011. A transcript of that argument has been prepared and will be referred to as (TR).
Discussion
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . ." (Internal quotation mark omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706 (2010). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47 (2001). "The proper procedural vehicle for disputing a party's standing is a motion to dismiss." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 615 n. 6 (2005). "The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. Practice Book § 10-31(a)." (Internal quotation marks omitted.) Wilcox v. Webster, 294 Conn. 206, 213, (2009). Defendant Patrick Treglia, as the party asserting this court's jurisdiction over the causes of action alleged in the counterclaim, has the burden of proving subject matter jurisdiction. Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430, n. 12 (2003), citing Fink v. Golenbock, 238 Conn. 183, 199 n. 13 (1991).
The plaintiff argues that the defendant's counterclaims should be brought by the administrator of the decedent's estate, not by an heir at law. Specifically, the plaintiff argues that the defendant's causes of action allege negligence toward the decedent and that, pursuant to General Statutes § 52-599, causes of action that arise in favor of or against a decedent during her lifetime need to be brought in the name of the fiduciary of her estate and not by her heirs or the beneficiaries of the estate. The plaintiff thus concludes that the defendant lacks standing to allege such claims.
The administrator of the Estate of the decedent Edna Treglia is Robert B. Keyes, appointed by the Norwalk Probate Court. (Tr. 5.) The administrator is not a party to this foreclosure case.
The defendant makes the following arguments in opposition to the motion. First, he argues, the plaintiff's attorney simultaneously represented the defendant's brother Robert Treglia and the mortgagee representative. Moreover, the plaintiff lacks proper title since the conveyance of the property was the subject of undue influence and the loan in question was a predatory loan. Furthermore, the administrator is not a necessary party. If the administrator was a necessary party, the lender would have had to initiate the lawsuit against the estate, which it did not do. The defendant further argues, however, that in earlier motion practice, the law of this case is that the estate was not a necessary party, a position that the lender took in opposing an earlier motion to dismiss. Finally, the defendant claims that he was injured by the actions of the lender and its counsel, and therefore has standing to raise the counterclaims against the plaintiff.
In reply, the plaintiff argues that it makes no claim that the administrator of the decedent's estate is a "necessary party," but instead raises the issue that the defendant does not have standing. The plaintiff notes that it filed an objection as to the inclusion of the administrator of the decedent's estate in the different context of a foreclosure action.
"[I]n order for a plaintiff to have standing, it must be a proper party to request adjudication of the issues . . . One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 565, (2011). "Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved." (Internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 538, (2006). "Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation . . ." (Internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., supra, 300 Conn. at 555. "Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest. Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest . . ." (Internal quotation marks omitted.) Id.
In the present case, the defendant has no standing to bring his counterclaim, by virtue of Conn. Gen. Stat. § 52-599, Connecticut's survival of action statute. Section 52-599(b) provides in relevant part: "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." "Although at common law the death of a sole plaintiff or defendant abated an action . . . by virtue of § 52-599, Connecticut's right of survival statute, a cause of action can survive if a representative of the decedent's estate is substituted for the decedent." (Citation omitted; internal quotation marks omitted.) Negro v. Metas, 110 Conn.App. 485, 497-98, cert. denied, 289 Conn. 949 (2008). While an executor or administrator may bring a cause of action on behalf of the decedent, the heirs or beneficiaries of the decedent may not. "[T]he proper suit, upon a cause of action arising in favor of or against the decedent during his lifetime, is in the name of the fiduciary rather than of the heirs or other beneficiaries of the estate. Actions designed to recover personalty belonging to the estate or for its use, conversion or injury, are brought by the fiduciary rather than by the beneficiaries." (Emphasis in original; internal quotation marks omitted.) George v. Warren, Superior Court, Judicial District of New Haven, Docket No. 0356138 (September 21, 1995, Zoarski, J.).
Cases have addressed the issue of when a claim constitutes a survival action that must be brought by the administrator or fiduciary of the decedent's estate. For example, in Fedor v. Hawley, Superior Court, Judicial District of Fairfield, Docket No. CV 06 5003192 (November 3, 2006, Tyma, J.), the plaintiffs claimed that the decedent's alleged transfer of her residence to one of her daughters while retaining a life estate wrongfully deprived them of estate property. The defendant moved to dismiss the claim on the ground that the plaintiffs were not fiduciaries of the decedent's estate at the time the action was commenced and, consequently, they lacked standing to pursue their claims. The court granted the motion, holding that the claim was a survival action in that the plaintiffs asserted the claim in their "representative capacity." The court noted that the plaintiffs alleged that the defendant "made fraudulent representations to the decedent . . ." (Emphasis in original.) Id. The court concluded that the plaintiffs lacked standing to bring the claim because they were no longer representatives of the estate as of the commencement date of the action. Id.
Similarly, in the present case, the defendant's causes of action allege injury to the decedent, not to the defendant himself. Specifically, the first count alleges that the plaintiff's agent failed to exercise the appropriate duty of care to the decedent. This claim is specific to the decedent, and it does not allege any wrongdoing to the defendant in his individual capacity. In addition, the second count alleges that the decedent was unable to convey title to the plaintiff as a result of her diminished mental capacity. Moreover, in the third and fourth counts, the defendant alleges that the conveyance to the plaintiff by the decedent never should have been made given the wrongdoings committed against her — that is, the undue influence exercised upon her by the defendant's brother and the failure of the plaintiff's counsel to represent properly the decedent and her interests. Finally, in the fifth count, the defendant alleges that the making of the note and mortgage to the decedent violated CUTPA. All of these claims allege injury to the decedent, not to the defendant, and they are brought in the representative capacity of the defendant. Thus, the defendant's allegations are survival claims and, accordingly, must be brought in the representative capacity of the administrator or fiduciary of the decedent's estate. Therefore, the defendant is not statutorily aggrieved because he has no statutory basis to bring his counterclaims.
In addition to lacking a basis to establish statutory aggrievement, the defendant cannot demonstrate that he was classically aggrieved by the plaintiff. First, the defendant cannot establish a specific, personal or legal interest in the subject matter of his allegations. As mentioned above, the defendant's counterclaims are specific to the decedent and do not allege injury to the defendant himself. Second, the defendant cannot demonstrate that the plaintiff's actions have specially and injuriously affected a specific, personal or legal interest of the defendant. The defendant's counterclaims do not allege a specific, personal or legal interest of the defendant since the causes of action allege injury only to the decedent.
The defendant attempts to assert a personal or legal interest in the case by arguing that he was injured by the plaintiff and its counsel. It is possible that the defendant was indirectly injured as a putative beneficiary or heir of the decedent's estate by the plaintiff's actions. Nevertheless, potential indirect injuries to the defendant are immaterial because only direct injuries can confer standing on a litigant. "[I]f the injuries claimed by the plaintiff are remote, indirect or derivative with respect to the defendant's conduct, the plaintiff is not the proper party to assert them and lacks standing to do so. [When], for example, the harms asserted to have been suffered directly by a plaintiff are in reality derivative of injuries to a third party, the injuries are not direct but are indirect, and the plaintiff has no standing to assert them." (Internal quotation marks omitted.) Connecticut State Medical Society v. Oxford Health Plans (CT), Inc., 272 Conn. 469, 476-77 (2005). In the present case, all of the injuries that the defendant alleges pertain to the decedent, and therefore any injury that the defendant himself suffered were indirect and derivative of the alleged injuries. Accordingly, the mere fact that the defendant might have been indirectly harmed by the plaintiff's actions as a beneficiary or heir of the decedent's estate is insufficient to confer standing on him. Absent a direct injury to a specific, personal or legal interest, the defendant lacks standing.
There are cases dealing with a beneficiary or heir of a decedent's estate bringing suit individually and alleging wrongdoing to the decedent or her estate. In Tata v. Reignier, Superior Court, Judicial District of Waterbury, Docket No. 0103374 (November 19, 1991, Meadow, J.) ( 6 C.S.C.R. 1129) [ 5 Conn. L. Rptr. 218], the heirs of the decedent's estate sued another heir of the estate for unjust enrichment and alleged that they would have inherited certain assets had the defendant not misappropriated those assets to her own benefit. The defendant filed a motion to strike on the ground that the plaintiffs had not alleged any past or present legal interest in the property. In finding for the defendant, the court held that the administrator of the decedent's estate was the proper party to bring the suit. Id., 1130.
Conversely, in Botte v. DeChristoforo, Superior Court, Judicial District of New Haven, Docket No. CV 05 4014600 (December 30, 2005, Devlin, J.), the husband of the decedent brought suit against the executrix and the administrator of the decedent's estate seeking a declaratory judgment that the decedent lacked capacity and was the subject of undue influence at the time she executed a deed to her home. The defendants filed a motion to dismiss on the grounds that the husband lacked standing and that only the appointed fiduciary of the estate could bring such claims. In rejecting this argument and distinguishing Tata, the court noted that the plaintiff alleged a longstanding joint tenancy interest in the subject property and that the plaintiff argued that the subject property never should have been in the decedent's estate, but rather should have passed to him by operation of law through the joint tenancy.
The present case is more akin to Tata than to Botte in that the defendant's claimed interest is not that of joint tenancy and the asset in question subject to probate was part of his mother's estate. Defendant argues that the defendant's interest in the decedent's estate passed to him at the moment of the decedent's death, so that the defendant has a present interest in the estate. Nevertheless, although this argument accurately states the common-law rule on estates; see G. Wilhelm, Settlement of Estates in Connecticut (3d Ed. 2010) § 9:180, p. 9-72; the fact remains that any purported interest of the defendant is still initially part of the estate and is subject to probate administration within the control of the administrator, unlike property held in joint tenancy and the property at issue in Botte. Specifically, in Botte, the plaintiff's interest was entirely separate from the decedent's estate and immune from probate since the plaintiff alleged that he had held the property in a joint tenancy with the decedent. Conversely, in Tata, the property that the plaintiffs were seeking was part of the estate and subject to probate, similar to the defendant's interest in the present case. Accordingly, the present case is distinguished from Botte, and, like the plaintiffs in Tata, the defendant has not demonstrated a specific, personal or legal interest in the case.
Order
For the foregoing reasons defendant Patrick Treglia lacks standing to maintain his counterclaim and this court therefore lacks subject matter jurisdiction over the counterclaim. Plaintiff's motion to dismiss the defendant Patrick Treglia's counterclaim is granted; defendant Patrick Treglia's objection to the motion to dismiss is overruled.