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Butler-Askew v. Pascuzzi

Superior Court of Connecticut, Judicial District of Danbury, Danbury

May 19, 2017

LINDA BUTLER-ASKEW
v.
LOUIS A. PASCUZZI, ET AL

          MEMORANDUM OF DECISION MOTION TO DISMISS. NO. 116

          Anthony D. Truglia, Jr., Judge.

         I. Factual and Procedural Background

         The plaintiff in this case is the sister of John A. Vendetti, Jr., the decedent. The decedent died at Danbury Hospital on September 4, 2014. The plaintiff brings this action to invalidate a quitclaim deed executed by her brother in the weeks immediately prior to his death and to recover cash and other assets transferred by a power of attorney also executed by her brother just before his death. The defendants are Richard A. Smith, Esq. and Louis A. Pascuzzi, the decedent's friend and long-time business partner, whom the plaintiff names in this action individually and in his capacity as temporary administrator of the decedent's estate. Smith prepared the deed and durable power of attorney at issue in this case, and arranged execution of the two documents by the decedent.

         The plaintiff makes the following allegations in support of her claims. The decedent was admitted to Danbury Hospital on August 18, 2014, suffering from " advanced stage IV lung cancer and with innumerable brain lesions." That same day, Pascuzzi called Smith and asked him to prepare a deed transferring ownership of 20 South Street, Danbury, to Pascuzzi. The decedent executed the deed in favor of Pascuzzi the following day. Hospital reports indicate that the decedent was in " intractable pain" and " was not being consulted in any way for his own health care decisions on August 19, 2014, the day the [quitclaim deed] was signed."

         According to the plaintiff, " [n]umerous Danbury Hospital medical records report the decedent as being in a delirious state of mind and diminished level of consciousness on September 1, 2014 and September 2, 2014." Notwithstanding these grave illnesses, the decedent also executed a new last will and testament. This will, dated September 2, 2014, names Pascuzzi as sole beneficiary of the decedent's testamentary estate and also names him executor of the estate (the 2014 will). [1] The decedent also executed a durable power of attorney, also prepared by Smith, which named Pascuzzi as the decedent's attorney-in-fact. The plaintiff alleges that Pascuzzi used this power of attorney " to transfer funds from the decedent's personal bank accounts to bank accounts shared with Pascuzzi for business."

         In her memorandum in opposition, the plaintiff additionally asserts the following. The Danbury Probate Court, Yamin, J., appointed Pascuzzi as temporary administrator of the decedent's testamentary estate on November 18, 2014, " pending a Will contest." (Ex.A to plaintiff's memorandum in opposition, #120). The plaintiff objected to admission of the 2014 will, claiming that (1) the 2014 will was not validly executed; (2) the decedent did not have sufficient testamentary capacity to execute a valid will in the days before his death; and (3) the 2014 will was the result of Pascuzzi's undue influence. After a trial, the probate court, Yamin, J., by decree dated July 7, 2016, found against the plaintiff and admitted the 2014 will as the decedent's Last Will and Testament. On September 28, 2016, the court granted the plaintiff's motion for a stay of enforcement of its decree admitting the 2014 will. (Ex. B to the plaintiff s memorandum in opposition, #120). The court kept the appointment of Pascuzzi as temporary administrator in place and granted him the right to " exercise powers and duties under [General Statutes § ] 45a-317 and pursuant to [General Statutes § ] 45a-202." The probate court further ordered that " [t]here shall be no distribution and shall be no sale of real estate without Court order."

         The plaintiff commenced an appeal de novo of the decision to admit the 2014 will to probate in this court pursuant to General Statutes § 45a-186, Butler-Askew v. Pascuzzi, Superior Court, judicial district of Danbury, Docket No. CV-16-6020332-S. That appeal remains pending.

         The present action seeks to invalidate the August 19, 2014 quitclaim deed and September 2, 2014 power of attorney on similar grounds of lack of capacity, undue influence and fraud. The plaintiff alleges in counts one and three of her complaint [2] that her brother lacked the legal capacity necessary when he signed the deed and power of attorney in favor of Pascuzzi, and that the defendants " took advantage of the decedent at a time when he was incapable of making decisions for himself." In count two, subtitled " conspiracy to commit fraud, " she repeats the factual allegation of the first count and alleges that Smith " owed a duty to protect the interests of the decedent and his heirs yet acted for the benefit of Pascuzzi." She further alleges that " Pascuzzi and Smith acted in concert to defraud the decedent and the decedent's estate out of the rightful ownership of [20 South Street, Danbury]." In count four, the plaintiff again alleges that the defendants knew or should have known that the decedent lacked sufficient mental capacity to execute a power of attorney, yet conspired to procure a power of attorney naming Pascuzzi as the decedent's attorney-in-fact, which Pascuzzi used to transfer cash and other assets to himself and thereby " defraud the decedent and the decedent's estate ...." By doing so, Smith breached his duty to protect the interests of the decedent and his heirs.

          New England, Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996) (" [I]t was ... inappropriate for the trial court to consider Peabody's amended third party complaint, rather than its initial complaint, when acting on the state's motion to dismiss for lack of subject matter jurisdiction.... It is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court.... Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." [Citations omitted; internal quotation marks omitted.]). Therefore, any reference to the complaint is to the original complaint that was filed on August 26, 2016.

         The plaintiff in the present action requests a judgment from this court " reversing the quit claim deed signed August 19, 2014 putting [20 South Street, Danbury] back in the name of only [the decedent]." She also seeks monetary damages for all counts, and an award of attorney's fees for her fraud and conspiracy claims.

         Pascuzzi has moved to dismiss the plaintiff's action against him for lack of standing. Pascuzzi argues that this court does not have subject matter jurisdiction over any of the plaintiff's causes of action because she cannot, as of this moment, claim that she has been aggrieved by any of his actions. Pascuzzi argues that, at least as of the filing of the plaintiff's complaint in the present action, the Danbury Probate Court has admitted to probate the 2014 will. The 2014 will leaves all of the decedent's assets to Pascuzzi.

         Pascuzzi argues that, if the plaintiff is successful in the present action and the quitclaim deed and power of attorney are invalidated, then the real estate transferred by the quitclaim deed and any and all other assets that may be recovered, as a result of invalidating the power of attorney, will become part of the decedent's residuary estate. If so, then any and all newly-acquired assets will pass to the sole beneficiary of the decedent's estate, i.e., Pascuzzi. Furthermore, Pascuzzi will remain the sole beneficiary of the estate unless and until the probate court's decision to probate the 2014 will is reversed. Therefore, he argues, at the present time the plaintiff has only an indirect interest as a possible beneficiary of the decedent's estate. Such an indirect interest is insufficient to confer standing on the plaintiff with respect to the 2014 will and power of attorney, and the plaintiff's action must be dismissed as to Pascuzzi.

         The plaintiff makes three arguments in opposition to the motion. First, she argues that the probate court appointed Pascuzzi temporary administrator of the decedent's estate with no authority to bring claims on behalf of the estate. The court expressly limited Pascuzzi's role to " ascertaining and inventorying the assets of the estate... and to receive the income of and pay the bills of the estate, as well as other powers and duties as set forth in...§ 45a-317, pending resolution of the will contest." (Ex. A to plaintiff's memorandum in opposition, #120). Moreover, it is unlikely that Pascuzzi, as sole heir, would bring an action against himself to recover assets rightfully belonging to the decedent's estate. But even if he were inclined to do so, § 45a-317 does not give him the authority to do so.

         Second, she argues that, as the decedent's sister, she is an heir at law. The plaintiff concedes that the court's decree admits the 2014 will to probate. However, she argues that enforcement of that decision has been stayed and, as of the filing of this action, the 2014 will has therefore not been probated and Pascuzzi has not been conclusively determined to be sole beneficiary of the decedent's estate. " Since the decedent's will has not been admitted due to the pending appeal, this is an intestate estate for, at the very least, the duration of said appeal." If the plaintiff is successful in reversing the probate court's ruling, then she will have the possibility of sharing in the assets of the estate as ...


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