Opinion
DBDCV176022647S
08-06-2019
Rebecca RIGDON, Administrator of the Estate of Dorothy Collida v. Thomas PILLA
UNPUBLISHED OPINION
OPINION
Kowalski, J.
Before the court is a motion to restore this civil action to the docket and to substitute party plaintiffs (#140.00), filed by Frank Collida and Susan Collida, two non-parties to the action, following its withdrawal by the plaintiff on August 13, 2018. The motion is opposed by all parties to the action. The court concludes that restoration to the docket would not be a proper exercise of its discretion, and therefore, the motion is denied.
I. BACKGROUND
The present action was originally commenced by Frank Collida, in his capacity as executor of the estate of the estate of Dorothy Collida, who died on July 1, 2016. In the substituted complaint, dated October 24, 2017, the executor asserts claims against Elaine Pilla and her husband, Thomas Pilla, sounding in conversion, statutory theft, unjust enrichment and constructive trust, and further asserts a claim of forgery against Elaine Pilla. The crux of the executor’s claims are that Elaine Pilla and Thomas Pilla took assets of Dorothy Collida, both before and after her death, without authority. The movants, Frank and Susan Collida, and the defendant, Elaine Pilla are Dorothy Collida’s children and are named as beneficiaries in her will.
Subsequently, by decree dated May 18, 2018, the Probate Court for the Housatonic District removed Frank Collida as executor, replacing him with a neutral third-party fiduciary, Attorney Rebecca Rigdon, as administrator. Before doing so, the Probate Court heard testimony and argument from the parties over the course of two days, and ordered the parties to file memoranda on the applicability of General Statutes § 45a-242, "Removal, resignation and replacement of fiduciary." In its decree, the Probate Court recites relevant underlying facts. With respect to the claims in the present action, the Probate Court stated that, "[t]estimony elicited from Susan Collida, a beneficiary, included an affidavit wherein she provided a recital of her delivery of $180, 000.00 cash, owned by Dorothy Collida, to Elaine Pilla and Thomas Pilla. These monies were alleged to have been from checks received by Dorothy Collida at the mailing address of her son, Frank Collida. When questioned about her affidavit, Susan Collida testified that there were no documents to support the affidavit. Rather, Susan Collida testified that she based it entirely on a ‘wild ass guess.’" The Probate Court further stated that "Frank Collida, during the two-day hearing, specifically stated that he could not be fair in the administration of the estate. Such testimony is evidence of Frank Collida’s unfitness and unwillingness to perform his duties as required. His mismanagement of this estate negatively affects all the beneficiaries."
The Probate Court ultimately found that removal of Frank Collida as executor was appropriate pursuant to General Statutes § 45a-242(a)(1), because he could not maintain a duty of loyalty to the estate since his personal interests conflicted with that of the estate. The Probate Court further found that Frank Collida had either failed to perform or unjustifiably delayed the simple administrative duties as required by his appointment pursuant to General Statutes § 45a-242(a)(3). Finally, the Probate Court determined that, pursuant to General Statutes § 45a-242(a)(4), the removal of Frank Collida as executor would best serve the interests of the beneficiaries. The Probate Court further found that there was a substantial change in circumstances since Frank Collida’s appointment as executor that warranted his removal, including the utilization of "his position as fiduciary to file a civil law suit in the Superior Court based entirely on a ‘wild ass guess, ’ as testified to by Susan Collida."
Attorney Rigdon, in her capacity as administrator, filed a motion to substitute executor of estate in the present action, which was granted on July 2, 2018. On July 23, 2018, Frank Collida and Susan Collida filed a motion to intervene as party plaintiffs. The motion printed on the August 13, 2018 short calendar, but was not marked ready by the movants. After the marking period had expired, the administrator served and e-filed a withdrawal of the action, that was processed on Monday, August 13, 2018.
On November 5, 2018, Frank Collida and Susan Collida filed the present motion to restore the present action to the docket and to substitute them as party plaintiffs, in place of the administrator. Thomas and Elaine Pilla filed objections to the motion, as did the administrator. In her objection, the administrator represented to this court that she promptly reviewed the voluminous file relative the present action after it was provided to her on July 19, 2018 and then conferred with outside counsel to seek advice as to the merits of the action. After doing so, the administrator determined that there was no good faith basis to prosecute the action. On August 10, 2018, the administrator conferred with the clerk of this court to confirm that the movants had not marked their motion to intervene ready within the time permitted to do so, and then prepared, served and filed the withdrawal of action. The court heard argument on the motion and objections on March 26, 2019.
At oral argument on the motion, counsel for the movants conceded that the administrator had the power to withdraw the present action, but argued that pursuant to General Statutes § 52-107 and Practice Book § 9-18, their motion to intervene should have been automatically granted upon filing, and that had the motion been so granted, the movants could have continued to pursue this action regardless of the administrator’s decision to withdraw. The administrator and defendants disagree, and assert that in order for the motion to intervene to have been considered by the court, it needed to appear on a court calendar, be marked ready in accordance with established procedures and decided by the court. The movants and the parties submitted memoranda of law on this issue.
II. DISCUSSION
A. Standard of Review on Motion to Restore after Withdrawal
General Statutes § 52-80 gives a plaintiff the right to withdraw an action before the commencement of a hearing on the merits. However, even if an action is withdrawn pursuant to General Statutes § 52-80, the trial court may exercise its discretion to restore the case to the docket if not doing so would lead to an unjust result. Travelers Property Casualty Co. of America v. Twine, 120 Conn.App. 823, 826-28, 993 A.2d 470 (2010); see also Lusas v. St. Patrick’s Roman Catholic Church Corp., 123 Conn. 166, 170, 193 A. 204 (1937).
"Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice ... Inherent in the concept of judicial discretion is the idea of choice and a determination between competing considerations ... A court’s discretion must be informed by the policies that the relevant statute is intended to advance." (Citations omitted; internal quotation marks omitted.) State v. Robinson, 32 Conn.App. 448, 460, 630 A.2d 87 (1993), aff’d, 230 Conn. 591, 646 A.2d 118 (1994).
With respect to motions to restore to the docket after a withdrawal, our Appellate Court recently stated as follows.
Withdrawals are analogous to final judgments ... Under [the] law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of the case from the docket ... [T]he motion to restore a case to the docket is the vehicle to open a withdrawal, while the motion to open is the vehicle to open judgments ... Section 52-212a, which provides that civil judgments may only be opened or set aside within four months of the date they were rendered, is applicable not only to the opening of a case that has proceeded to judgment but also to the restoration of a withdrawn case ... Accordingly, a motion to restore a withdrawn case is seasonable only if it is filed within four months of the withdrawal.Law Offices of Frank N. Peluso, P.C. v. Cotrone, 178 Conn.App. 415, 421-22, 175 A.3d 613 (2017) (citations omitted; internal quotation marks omitted).
B. Whether the filing of a Motion to Intervene Prior to Withdrawal Requires the Restoration of the Present Action to the Docket
In support of their motion to restore, the movants argue that their motion to intervene should have been automatically granted upon filing, that is, without the necessity of the motion appearing on the short calendar and being marked ready. This argument is founded on General Statutes § 52-107 and Practice Book § 9-18, which provide as follows.
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 § 52-107.
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.Practice Book § 9-18.
Specifically, the movants contend that the words "shall direct" in the second sentence of both the statute and the Practice Book section mandate that a motion to intervene be granted upon filing. They further contend that had that happened in this action, the administrator would not have been able to withdraw the action and therefore this court must now grant their motion to restore the action to the docket and substitute them as plaintiffs.
This court disagrees. There is nothing in our statutes or rules of practice that require a motion to intervene to be automatically granted upon filing. Indeed, when presented with a motion to intervene, there are determinations that must necessarily be made by the court prior to acting on the motion. For example, the court needs to determine whether the motion to intervene is timely, which involves "a determination of how long the intervenor was aware of an interest before he or she tried to intervene, any prejudicial effect of intervention on the existing parties, any prejudicial effect of a denial on the applicant and consideration of any unusual circumstances either for or against timeliness." Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn.App. 134, 146-47, 758 A.2d 916 (2000).
In this action, the matters which the court may have considered with respect to timeliness include: (1) the action had been pending for approximately fourteen months prior to its withdrawal by the administrator on August 13, 2018; (2) the movants did not file their motion to intervene and be added as party plaintiffs until July 23, 2018, which was thirteen months after the action was commenced by the movant Frank Collida, in his capacity as executor, two months after the Probate Court’s removal of Frank Collida as executor, and three weeks after the substitution of Attorney Rigdon as administrator; (3) the same counsel who represented Frank Collida as executor when he commenced the action and thereafter also represented the movants on their motion to intervene and be made party plaintiffs; and (4) potential claims of prejudice to the defendants. The foregoing matters underscore precisely why motions to intervene are not simply granted upon filing.
Also prior to ruling on a motion to intervene, the court needs to determine that the movants’ interests are not represented adequately by any party to the litigation, in this case, the administrator. "The most significant factor in assessing the adequacy of representation is how the interests of the absentees compare with the interests of the present parties; the weight of the would-be intervenors’ burden varies accordingly. If, for instance, the interests are identical or there is a party charged by law with representing a proposed intervenor’s interest, a presumption of adequate representation arises that the would-be intervenor can overcome only through a compelling showing of why this representation is not adequate ... At the other end of the spectrum, a presumption of inadequacy arises when an absentee must rely on his opponent or one whose interests are adverse to his." (Citations omitted; emphasis in original; footnote omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 60 Conn.App. 148-49.
In the present action, the Probate Court not only determined that removal of Frank Collida as executor was necessary, but that the appointment of a neutral third-party executor would best serve the interests of justice, and the interests of all beneficiaries. The Probate Court appointed Attorney Rigdon as the administrator specifically to protect those interests. Given that, the administrator enjoys the benefit of a presumption of adequate representation. Id. Although the court would also bound to accept the allegations in the motion to intervene as true; Kerrigan v. Commissioner of Public Health, 279 Conn. 447, 457, 904 A.2d 137 (2006); the closest the movants come to alleging lack of adequate representation is their allegation in paragraph 3 of their motion to intervene, in which they allege that they "have no basis to believe that the newly named Administrator, Rebecca Ridgon, will adequately represent their interests in this litigation." That allegation, accepted as true, falls short of the necessary "compelling showing of why this representation is not adequate." Id.
Finally, the motion to intervene was defective in that it did not comply with Practice Book § 11-10(a)(1), which requires the filing of a supporting memorandum of law with a motion regarding parties filed pursuant to Practice Book § 9-18. Given the facts and circumstances of this case, the court rejects the movants’ argument that their motion to intervene should have been automatically granted upon filing and does not agree that their filing of a motion to intervene prior to the withdrawal of the action by the administrator provides a valid basis upon which this court should exercise its discretion and restore the case to the docket.
C. Whether Other Considerations Require Restoration of the Present Action to the Docket
General Statutes § 45a-234(18) provides that a fiduciary, such as the administrator in this action, has the power to litigate, compromise or abandon actions and that any decision in that regard shall be conclusive between the fiduciary and the beneficiaries in the absence of fraud, bad faith or gross negligence of the fiduciary. The movants have failed to allege, or offer any proof, of fraud, bad faith or negligence by the administrator. Further, unlike other cases in which courts have restored cases to the docket, this case involves neither "procedural chicanery"; Palumbo v. Barbadimos, supra, 163 Conn.App. 103; nor "sharp practice"; see Pension Services, LLC v. Winchester Estates, LLC, Superior Court, judicial district of Litchfield, Docket No. CV-08-5004972-S (January 25, 2011, Danaher, J.) (51 Conn.L.Rptr. 307); which, although technically permissible, would lead to an unjust result that would lead this court to exercise its discretion to restore the case to the docket; nor "any claim of a vested right acquired during the pendency of an action and prior to its withdrawal ..." Lytwinick v. Lytwinick, 21 Conn.Supp. 497, 498, 157 A.2d 494 (1959), cited with approval in Matey v. Waterbury, 24 Conn.App. 93, 97, 585 A.2d 1260, cert. denied, 218 Conn. 908, 588 A.2d 1382 (1991). In fact, the thoughtful and detailed Probate Court decree cited the commencement of the present action by Frank Collida, as executor, "based entirely on a ‘wild ass guess, ’ as testified to by Susan Collida," as a change in circumstance that required Frank Collida’s removal as executor pursuant to General Statutes § 45a-242(a)(4), in order to best serve the interests of the beneficiaries.
Finally, as noted above, the movants had ample time to take the steps necessary to be made plaintiffs to this action prior to its withdrawal by the administrator, but failed to do so. The motion was pending for approximately fourteen months prior to its withdrawal on August 13, 2018, yet the movants did not file their motion to intervene and be added as party plaintiffs until July 23, 2018. Then when the motion printed on the short calendar, the movants failed to mark it ready for adjudication. It was only after the movants failed to do so that the administrator filed the withdrawal of action. Given the foregoing facts and circumstances of the present action, the court declines to exercise its discretion to grant the motion to restore.
Because the court has decided not to exercise its discretion to restore the case to the docket, it need not address the movants’ request to be substituted as party plaintiffs.
III. CONCLUSION
For all of the foregoing reasons, the court declines to exercise its discretion to restore this case to the docket. The motion (#140.00) is denied.