Superior Court of Connecticut, Judicial District of Danbury, Danbury
MEMORANDUM OF DECISION MOTION TO DISMISS. NO.
Anthony D. Truglia, Jr., Judge.
Factual and Procedural Background
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.
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]
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).
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."
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."
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.
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  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,
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.
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
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.
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
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 ...