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*********************************************** 
FRANCIS A. COCCHIA v. ROBERT TESTA

(AC 44026)

Moll, Cradle and Clark, Js.

Syllabus

The plaintiff sought to recover damages from the defendant T, who had

agreed to indemnify the plaintiff from certain liability, following T’s

alleged default on that indemnification agreement. After T’s death, the

trial court granted the plaintiff’s motion to substitute R, the trustee of

a trust to which T had transferred certain real property, as a defendant.

The plaintiff then filed an amended two count complaint, alleging in

one count that T had breached the indemnification contract with the

plaintiff and, in the second count, that R, as trustee, had fraudulently

accepted the conveyance of the real property to the trust, knowing that

T was indebted to the plaintiff. The court defaulted R for failure to

appear and rendered judgment in favor of the plaintiff, awarding him

damages. The court thereafter denied R’s motion to dismiss the action

on the basis that the court lacked personal jurisdiction over him, and

R appealed to this court. Held that the trial court properly denied R’s

motion to dismiss, as it had personal jurisdiction over R; although the

court cited R into the case pursuant to the plaintiff’s motion to substitute

the defendant, that motion was effectively a motion to add R as a new

and separate party under the theory of liability that R was a fraudulent

transferee of T’s assets, as the motion identified R by name and in his

capacity as trustee and alleged that the trust received assets from T in

order to place those assets beyond the plaintiff’s reach, and the operative

complaint, with which R was served, did not seek to recover from R

for breach of the underlying indemnification agreement but alleged only

that R was liable as a fraudulent transferee.

Argued April 7—officially released August 10, 2021

Procedural History

Action to recover damages for breach of contract,

and for other relief, brought to the Superior Court in

the judicial district of Stamford-Norwalk, where the

court, Kavanewsky, J., granted the plaintiff’s motion

to substitute Robert J. Testa, Jr., trustee of the Karen

M. Testa Separate Property Trust, as a defendant; thereafter, the plaintiff filed an amended complaint; subsequently, the defendant Robert J. Testa, Jr., trustee, was

defaulted for failure to appear, and the court, Genuario,

J., after a hearing in damages, rendered judgment for the

plaintiff; thereafter, the court, Hon. Taggart D. Adams,

judge trial referee, denied the motion to dismiss filed

by the defendant Robert J. Testa, Jr., trustee, and the

defendant Robert J. Testa, Jr., trustee, appealed to this

court. Affirmed.

Christopher D. Hite, for the appellant (defendant

Robert J. Testa, Jr., trustee).

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

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 trustee. He

urges us to look at the context and substance, not the

name, of the motion. We agree with the plaintiff.

‘‘In certain circumstances, this court previously has

looked beyond the label of a motion to reclassify it

when its substance did not reflect the label applied by

the moving party.’’ Santorso v. Bristol Hospital, 308

Conn. 338, 351, 63 A.3d 940 (2013); see also Whalen v.

Ives, 37 Conn. App. 7, 17, 654 A.2d 798 (functional effect

of motion was determinative), cert. denied, 233 Conn.

905, 657 A.2d 645 (1995). In the present case, it is plain

from the content and substance of the ‘‘motion to substitute’’ that the plaintiff was asking the court to add the

trustee as a defendant in this matter solely on the basis

of his alleged liability as a fraudulent transferee of Testa’s assets. The inaptly titled ‘‘motion to substitute’’

identified the trustee by name and in his capacity as

trustee of the trust. It went on to allege that the trust

had received assets from Testa ‘‘in order to place these

assets beyond the reach of the plaintiff.’’ The motion did

not allege that the trustee was a party to the underlying

indemnification agreement between the plaintiff and

Testa or seek to ‘‘substitute’’ the trustee for Testa as

the party liable to the plaintiff under the terms of that

agreement. After the court granted the motion, the

plaintiff filed and served the operative complaint on

the trustee. Consistent with the substantive allegations

in the inaptly titled ‘‘motion to substitute,’’ the operative

complaint did not seek to recover from the trustee

for breach of the underlying indemnification agreement

between the plaintiff and Testa. It alleged only that

the trustee is liable to the plaintiff in count two as a

fraudulent transferee.11

The trustee cites various cases in which parties

improperly sought to add a party by simply amending

a complaint. Those cases are inapposite because in each

of those cases, and unlike the present case, a party

failed to seek and to obtain from the court permission to
add a new party prior to serving an amended complaint

naming that party as a new defendant.

We conclude that the inaptly titled ‘‘motion to substitute’’ was, in effect, a motion to add the trustee as a

new and separate party under a different theory of

liability. Because the court granted that motion and

the trustee was subsequently served with the operative

complaint, the court had personal jurisdiction over him.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Practice Book § 9-18 provides in relevant part: ‘‘The judicial authority

may determine the controversy as between the parties before it, if it can do

so without prejudice to the rights of others; but, if a complete determination

cannot be had without the presence of other parties, the judicial authority

may direct that they be brought in. If a person not a party has an interest

or title which the judgment will affect, the judicial authority, on its motion,

shall direct that person to be made a party. . . .’’

2 The record does not reflect that the plaintiff petitioned the Probate Court

to open an estate pursuant to General Statutes § 45a-316. Section 45a-316

provides in relevant part: ‘‘Whenever, upon the application of a creditor or

other person interested in the estate of a deceased person, it is found by

the court of probate having jurisdiction of the estate that the granting of

administration on the estate . . . will be delayed, or that it is necessary

for the protection of the estate of the deceased, the court may, with or

without notice, appoint a temporary administrator to hold and preserve the

estate until the appointment of an administrator or the probating of the

will. . . .’’

3

‘‘[A]s a general rule, the trustee is a proper person to sue or be sued on

behalf of a trust.’’ (Internal quotation marks omitted.) Day v. Seblatnigg,

186 Conn. App. 482, 499, 199 A.3d 1103 (2018), cert. granted, 331 Conn. 913,

204 A.3d 702 (2019).

4 Although the trustee challenged the sufficiency of service of process in

the trial court, on appeal he does not challenge the trial court’s finding that

there was ‘‘little evidentiary support for the argument that the return of

service was not accurate . . . .’’

5 The trustee also filed a motion to open, vacate, and set aside the judgment,

in which he raised several procedural claims. The plaintiff objected on the

merits of the trustee’s procedural claims and on the ground that the motion

to open was untimely under Practice Book § 17-4. The court, Hon. Taggart

D. Adams, judge trial referee, summarily sustained the plaintiff’s objection

to the motion to open on January 22, 2020. The trustee has not appealed

from that order, and it is not relevant to the present appeal.

6 General Statutes § 52-107 provides: ‘‘The court may determine the controversy as between the parties before it, if it can do so without prejudice to

the rights of others; but, if a complete determination cannot be had without

the presence of other parties, the court may direct that such other parties

be brought in. If a person not a party has an interest or title which the

judgment will affect, the court, on his application, shall direct him to be

made a party.’’

General Statutes § 52-108 provides: ‘‘An action shall not be defeated by

the nonjoinder or misjoinder of parties. New parties may be added and

summoned in, and parties misjoined may be dropped, by order of the court,

at any stage of the action, as the court deems the interests of justice require.’’

Practice Book § 9-22 provides: ‘‘Any motion to cite in or admit new parties

must comply with Section 11-1 and state briefly the grounds upon which it

is made.’’

7 Though the same lawyer represented both Testa and the trustee in the

trial court, the trustee does not explain how he was prejudiced by the

removal of Testa from the case prior to the time his lawyer appeared in the

case on his behalf. The trustee is a separate party, was served in hand and

had an independent responsibility to appear and defend.

8 We note that the trustee has not appealed from the denial of the motion

to open the judgment. See footnote 5 of this opinion. As a general matter,

we cannot afford an appellant practical relief when the judgment has not

been opened. The present case, however, is analogous to Weinstein &

Wisser, P.C. v. Cornelius, 151 Conn. App. 174, 177–79, 94 A.3d 700 (2014),
in which this court allowed an appeal to proceed under similar factual

circumstances.

In that case, the defendant filed simultaneous postjudgment motions to

dismiss and to open a default judgment. Id., 177. The trial court denied the

motion to open and then denied the motion to dismiss on the ground that

the case would have to be opened before that motion could be considered.

Id., 177–78. The defendant appealed only from the denial of the motion to

dismiss, to which the plaintiff raised a mootness challenge. Id., 178. The

defendant argued that the appeal was not moot because the challenge he

raised in the motion to dismiss would have rendered the judgment void and

obviated the need for a motion to open. Id.

This court decided that the failure to appeal from the denial of the motion

to open was not fatal, stating that ‘‘[i]n this case . . . the issue of mootness

is inextricably intertwined . . . with the issue raised by the defendant on

appeal . . . . The motions asserted the same grounds and sought very similar relief. In order to avoid a mootness challenge, the defendant properly

should have appealed from the denial of the motion to open. But in the

unusual circumstances of this case, where the two grounds of decision are

by no means independent . . . it would doubtlessly exalt form over substance to avoid considering the merits of the appeal because the defendant

appealed from the wrong ruling.’’ (Citations omitted; internal quotation

marks omitted.) Id., 179; see also Josephine Towers, L.P. v. Kelly, 199 Conn.

App. 829, 835, 238 A.3d 732 (‘‘[a]lthough technically the court should have

ruled on the motion to open before any other motion was entertained, the

nearly simultaneous filing and consideration of the two motions in this case,

together with the identity of issues presented . . . compel the conclusion

that declining to address the merits of the motions would be a hypertechnical

elevation of form over substance,’’ citing Weinstein), cert. denied, 335 Conn.

966, 240 A.3d 281 (2020). On the basis of this precedent, we conclude that

the trustee’s failure to appeal from the denial of his motion to open is not

fatal to his appeal in this case.

9 The trustee also suggests in his brief that the plaintiff’s failure to substitute Testa’s estate at any point following his death ‘‘arguably’’ deprived the

court of subject matter jurisdiction to enter any subsequent orders in the

case. Following oral argument in this appeal, this court, sua sponte, ordered

supplemental briefing on the issue of whether the trial court had subject

matter jurisdiction to act on the plaintiff’s motion to substitute the trustee

in light of Barton v. New Haven, 74 Conn. 729, 730, 52 A. 403 (1902), and

its progeny. Those cases hold that ‘‘[d]uring the interval . . . between the

death and the revival of the action by the appearance of the executor or

administrator, the cause has no vitality. The surviving party and the court

alike are powerless to proceed with it.’’ Id., 730–31; see also, e.g., Burton

v. Browd, 258 Conn. 566, 571, 783 A.2d 457 (2001); Worden v. Francis, 170

Conn. 186, 188, 365 A.2d 1205 (1976); Boucher Agency, Inc. v. Zimmer, 160

Conn. 404, 407–408, 279 A.2d 540 (1971); Negro v. Metas, 110 Conn. App.

485, 498, 955 A.2d 599, cert. denied, 289 Conn. 949, 960 A.2d 1037 (2008);

Schoolhouse Corp. v. Wood, 43 Conn. App. 586, 590, 684 A.2d 1191 (1996),

cert. denied, 240 Conn. 913, 691 A.2d 1079 (1997); Bomstein v. Boucher

Agency, Inc., 5 Conn. Cir. 121, 122, 245 A.2d 296 (1968). Having received

and considered the supplemental briefs, we conclude that the court had

subject matter jurisdiction at the time it acted on the plaintiff’s motion to

substitute. Barton and the decisions that have followed hold that a ‘‘cause’’

by or against a single, deceased party is abated until such time as a proper

fiduciary is substituted for the deceased party. They do not stand for the

proposition that a court loses subject matter jurisdiction over an entire case

for all purposes, including separate causes against parties other than the

deceased, until a fiduciary is substituted for a deceased party. Such a rule

would be wholly inconsistent, for example, with General Statutes § 52-600,

which provides in relevant part: ‘‘If there are two or more plaintiffs or

defendants in any action, one or more of whom die before final judgment,

and the cause of action survives to or against the others, the action shall

not abate by reason of the death. . . .’’

10 General Statutes § 52-599 provides in relevant part: ‘‘(a) 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.

‘‘(b) 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. . . . If a party defendant dies, the plaintiff,

within one year after receiving written notification of the defendant’s death,
may apply to the court in which the action is pending for an order to

substitute the decedent’s executor or administrator in the place of the

decedent, and, upon due service and return of the order, the action may

proceed. . . .’’

11 Judge Genuario clearly recognized the nature of the trustee’s involvement. The plaintiff filed a motion for reconsideration on September 6, 2019,

contesting the monetary value of the judgment. In denying relief, the court

stated in relevant part that ‘‘[t]he defendant is not the maker of the note or

the estate of the maker of the note. To the extent the plaintiff is seeking

payment from a fraudulent transferee of property, he is seeking payment

from a tortfeasor and not a contracting party.’’ (Emphasis added.)