Law Offices of Frank N. Peluso, P.C. v. Estate of Delmo L. Zanette (2014)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS, OR IN THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT (110.00)

I. Background

The plaintiff law offices sues to collect on a purportedly non-refundable retainer agreement between the plaintiff law offices and Delmo Zanette.   The agreement, apparently signed around March 22, 2010, by Zanette and for the plaintiff by Attorney Frank N. Peluso involved an unspecified litigation matter.   The retainer amount was $25,000 described as “not returnable” and to be paid in advance.   According to the amended complaint, Delmo Zanette made two payments to the plaintiff in the total amount of $4,000.   On April 1, 2010 Delmo Zanette died.   On April 10, 2010 Paul J. Zanette, Delmo's grandson, was appointed Executor of the Estate of Delmo Zanette.

The plaintiff commenced a law suit dated October 31, 2012 seeking $21,000 naming the Estate of Delmo Zanette as defendant.   Plaintiff filed two motions for default for failure to appear, both were denied because the executor of the estate had not been served, and a motion to reargue the second denial was denied as well.   See Dkt. Entries 101.00, 101.86, 102.00, 102.86, 103.00 and 103.86.   An amended complaint was then served by mail on the Estate “c/o Executor Paul J. Zanette, Jr.” at an address in West Harrison, N.Y. on August 16, 2013.   On October 31, 2013 Paul J. Zanette appeared representing himself, and the law firm of Whitman, Breed, Abbott & Morgan subsequently appeared “in lieu” of Zanette for the “defendant.”

The defendant's motion to dismiss, or in the alternative for summary judgment, was heard on January 27, 2014.

II. Discussion

As the first ground of his motion, the Executor contends that the court lacks jurisdiction over the case because the complaint identified the defendant as the “Estate of Delmo Zanette c/o Paul J. Zanette, Jr.”;   see summons dated October 2, 2012 and amended writ and summons of August 16, 2013, Dkt. Entry 105.00;  and an estate is not a legal entity which can be sued.   59 Am.Jur.2d Parties § 44.   The Connecticut Appellate Court has held that to sue or be sued a party must be a legal entity and the court only has jurisdiction over legal entities.  Estate of Machowski v. Inland Wetlands Commission, 137 Conn.App. 830, 831 n.1 (2012);  Isaac v. Mt. Sinai Hospital, 3 Conn.App. 598, 600 cert. denied, 196 Conn. 807 (1985).   Therefore, the court finds itself without jurisdiction and grants the motion to dismiss.

As further grounds to dismiss this action the defendant seeks summary judgment against the plaintiff because the law suit is barred by General Statute § 45a–363(b).  The court will address this argument because both sides have addressed it, and in light of the Appellate Court's recognition that there might be some circumstances when the black letter law of Isaac v. Mt. Sinai Hospital, supra, may be disregarded.   See Estate of Machowski v. Inland Wetlands Commission, supra, 137 Conn.App. 831 n.1.

Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  Appleton v. Board of Education, 254 Conn. 205, 209 (2000).   Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.”  Miller v. United Technologies Corp., 233 Conn. 732, 751 (1985).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law.”  Appleton v. Board of Education, supra, 254 Conn. 209.  “A material fact has been defined adequately and simply, as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)   United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379 (1969).   The trial court, in the context of summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500, (1988).

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact [question] ․ a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.   It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.”  Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 54 (1998).  “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  Appleton v. Board of Education, supra, 254 Conn. 209.   See generally, Sic v. Nunan, 307 Conn. 399, 406 (2012);  Mott v. Wal–Mart Stores East L.P. 139 Conn.App. 618, 624–25 (2012).

General Statutes § 45a–363(b) says unless a person whose claim against an estate has been rejected commences suit on the claim within 120 days of the rejection, the person will be barred from recovering on such claim.   The Connecticut Supreme Court in Keller v. Beckenstein, 305 Conn. 523, 533–34 (2012) held that a party with a claim against an estate must present it to the executor.   If the executor rejects the claim, the claimant must petition the Probate Court or bring an action in Superior Court within 120 days of the rejection.

The undisputed facts before the court show that the plaintiff's claim for payment of the retainer was made to the Executor around January 20, 2012, and emphatically rejected by the email from the Executor on January 26, 2012.   Def. Affidavit (Dkt. Entry 111.00) ¶¶ 6–7 and exhibits B and C. The first service of a complaint in this action took place on October 12, 2012, well beyond the 120–day period.   Further, General Statutes § 45a–375(c) provides a two-year statute of limitations beginning with the deceased's death for any claims against an executor or estate.   This limitation period also expired before this suit was commenced.

The plaintiff argues that the six-year limitations period for claims under a written contract should apply.   There is no persuasive reason or legal authority presented supporting this argument, and in light of the specific provisions of Sections 45a–363(b) and 45a–375(c) it is rejected.   Other arguments by the plaintiff also lack merit.

III. Conclusion

For the reasons stated above, the motion to dismiss and/or for summary judgment is granted, and the complaint is dismissed.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

Adams, Taggart D., J.T.R.