Nancy Mirto v. John Villano (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 148

FACTS

On August 30, 2010, the plaintiff, Nancy Mirto, filed a complaint.   The plaintiff is the executrix of the estate of Roberta Pascale (the decedent).   In her revised complaint, the plaintiff alleges the following facts.   John Villano was the trustee of the Anthony Pascale testamentary trust (the trust) and the conservator of decedent's estate.   Until her death in 2008, the decedent, who was Pascale's daughter, was the sole beneficiary of the trust.   In 1998, the corpus of the trust consisted of $48,649.76 as well as real property located in West Haven, Connecticut, where the decedent previously resided.   From 1998 until 2004, Villano exhausted all of the personal property of the trust without providing for the decedent's care, comfort, health or general welfare.   After the personal property assets of the trust were expended, Villano began using the funds from the conservator estate to pay the costs of operating the trust, which included paying his trustee fees.

The decedent was terminated from her employment in December 2007 and was without health insurance.   Beginning at or before that time, the decedent developed a medical condition, which required her to see a doctor at least once a year.   Between December 2007 and November 2008, the decedent repeatedly told Villano that she needed medical care, but Villano failed to distribute any trust assets to cover the decedent's expenses.   In September 2008, the plaintiff was admitted to the hospital and was diagnosed with terminal cancer.   After she was discharged from the hospital in October 2008, the decedent lived with the plaintiff until her death in November 2008.   Upon the decedent's death, Villano allowed the assets of the trust to pass to the remaindermen beneficiaries of the trust.

Counts one, three and nine are against Villano and sound in breach of fiduciary duty as to his role as trustee and conservator.   Counts six and seven are also against Villano and sound in conversion and breach of contract, respectively.   Counts two, four and ten are against Western Surety Co. and sound in violations of General Statutes § 45a–144.   Count eight is against New England Home Construction, Inc. and sounds in a violation of the Connecticut Unfair Trade Practices Act.¹ Because the motion to dismiss is brought by Villano, the court will hereinafter refer to Villano as “the defendant.”

On August 10, 2012, the defendant filed a motion to dismiss counts one, three, six and nine of the plaintiff's revised complaint and a memorandum of law in support.   On September 12, 2012, the plaintiff filed an objection to the motion to dismiss and a memorandum of law in support.   The matter was heard at the short calendar on May 6, 2013.

ANALYSIS

“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 marks omitted.)  Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011).  “[T]he well established notion [is] that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”   (Internal quotation marks omitted.)  Id.

The defendant argues that the plaintiff does not have standing to bring counts one, three, six and nine because she has only sued the defendant in her individual capacity.   The defendant contends that the court therefore lacks subject matter jurisdiction over these counts.  “It is axiomatic that a party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim.”  Ganim v. Smith & Wesson Corp., 258 Conn. 313, 346, 780 A.2d 98 (2001).  “In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action.”  Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006).

As the plaintiff demonstrates, although she initially brought the present action only in her individual capacity, she subsequently filed an amended summons in order to bring the present action both individually and in her capacity as executrix of the decedent's estate on October 22, 2010.   Because the plaintiff, as executrix of the decedent's estate is entitled to bring any causes of action that could have been brought by the decedent,² the plaintiff has standing to bring counts one, three, six and nine.   Accordingly, the defendant's arguments are without merit.

The defendant further contends that he is entitled to quasi-judicial immunity as to counts three and nine of the revised complaint.   The defendant argues that because the probate court approved the accountings that he presented to the court, it approved the actions that he took in his role as court-appointed conservator of the decedent's estate.   Thus, the defendant argues that he is entitled to quasi-judicial immunity for the actions he took as conservator of the decedent's estate.   The plaintiff counters that although court-appointed conservators are generally entitled to immunity for actions specifically approved by the probate court, the alleged acts and omissions of the defendant in the present case were not approved by the probate court.

In support of their arguments, both parties rely upon Gross v. Rell, 304 Conn. 234, 40 A.3d 240 (2012).   In Gross, our Supreme Court addressed the issue of whether court-appointed conservators are entitled to quasi-judicial immunity.  Id., 250.   The court reasoned:  “[T]o determine whether court-appointed conservators are entitled to absolute quasi-judicial immunity, we must initially determine whether they perform functions sufficiently comparable to those of officials who have traditionally been afforded absolute immunity at common law ․ The primary duties of court-appointed conservators ․ are set forth in General Statutes (Rev. to 2005) §§ 45a–655 and 45a–656.   In general terms, a conservator of the estate is required to manage the conservatee's estate for the benefit of the conservatee ․

“We have repeatedly recognized ․ that when the Probate Court has expressly authorized or approved specific conduct by the conservator, the conservator is not acting on behalf of the conservatee, but as an agent of the Probate Court ․ Accordingly, when the conservator has obtained the authorization or approval of the Probate Court for his or her actions on behalf of the conservatee's estate, the conservator cannot be held personally liable ․ When the conservator's acts are not authorized or approved by the Probate Court, however, we see no reason to depart from the common-law rule that the conservator of the estate is not acting as the agent of that court, but as the fiduciary of the conservatee, and, as such, may be held personally liable ․ [B]ecause fiduciaries generally may be held liable for their conduct, we conclude that conservators are not entitled to judicial immunity when their acts on behalf of the conservatee are not authorized or approved by the Probate Court.”  (Citations omitted;  internal quotation marks omitted.)  Gross v. Rell, supra, 304 Conn. 250–54.

In count three, the plaintiff incorporates the earlier allegations set forth in count one, including that although the decedent complained to the defendant that she needed medical care, the defendant did not distribute trust assets to provide for the decedent's care, support, health and general welfare.   The plaintiff further alleges that the defendant breached his fiduciary duty as conservator by neglecting to preserve the assets of the decedent's conservator estate in that he failed to insist that the assets of the trust be distributed to the decedent and further failed to demand that the conservator estate receive reimbursement for monies paid toward the debts of the trust.   The plaintiff also alleges that as a result of the defendant's actions, the conservator estate became liable for debts that should have been paid from the assets of the trust.   In count nine, the plaintiff alleges that the defendant breached his fiduciary duty to protect the assets of the decedent's conservator estate in that he paid New England Home Construction, Inc. a sum beyond what other similar contractors would have charged for remodeling the plaintiff's bathroom.

The defendant contends that through approving the accountings, the probate court authorized the defendant's actions as conservator.   Although the defendant has attached copies of the accountings in support of his motion to dismiss, the accountings are not dispositive of the issue in the present case.   As set forth above, the plaintiff has alleged, inter alia, that the defendant was negligent in failing to provide for the decedent's care, support, health and general welfare.   Because such omissions are not addressed in the accountings, the court cannot determine that the court approved the defendant's alleged negligent acts and omissions.   Accordingly, the defendant is not entitled to quasi-judicial immunity, and the defendant's motion to dismiss is hereby denied.

CONCLUSION

For the foregoing reasons, the court denies defendant's motion to dismiss.

Brian T. Fischer, J.

FOOTNOTES

FN1. Counts five and eleven were against the West Haven Community House and Easter Seals Goodwill IRC, Inc., respectively.   On July 20, 2012, this court granted the defendants' motion to strike counts five and eleven..  FN1. Counts five and eleven were against the West Haven Community House and Easter Seals Goodwill IRC, Inc., respectively.   On July 20, 2012, this court granted the defendants' motion to strike counts five and eleven.

FN2. Section 52–599(a) provides:  “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.”.  FN2. Section 52–599(a) provides:  “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.”

Fischer, Brian T., J.