Warner v. Lancia

• Citation: 698 A.2d 938,46 Conn.App. 150
• Decision Date: 12 August 1997
• Docket Number: 15507,Nos. 15268,s. 15268
• Court: Appellate Court of Connecticut
• Parties: Robert WARNER et al. v. Jonathan J. LANCIA et al.

Page 938

698 A.2d 938

46 Conn.App. 150

Robert WARNER et al. v. Jonathan J. LANCIA et al.

Nos. 15268, 15507.

Appellate Court of Connecticut.

Argued Dec. 5, 1996.

Decided Aug. 12, 1997.

Richard E. Hayber, Higganum, with whom were Vincent Simko, Bridgeport, and, on the brief, Ebrahim Dehghani, Meriden, for appellants (defendant Jeannette Kordiak et al.).

Thomas W. Ude, Jr., with whom was Edward B. Winnick, New Haven, for appellees (plaintiffs).

Before EDWARD Y. O'CONNELL, FOTI and FRANCIS X. HENNESSY, JJ.

EDWARD Y. O'CONNELL, Judge.

The defendants Jonathan Winslow and Jeanette M. Kordiak ¹ appeal from a summary In this case, the plaintiffs sought to obtain a judgment against individual general partners of Laurel Associates. In 1991, the plaintiffs obtained a judgment against the partnership in the amount of $150,000 plus interest, based on a claim for a deposit given in connection with a real estate transaction. The defendants in the present action moved to intervene in the 1991 action against the partnership. Their motion was denied, and they did not appeal the denial.

                judgment rendered in favor of the plaintiffs. 2  The defendants [46 Conn.App. 152] claim that the trial court improperly (1) substituted a deceased partner's executrix as a party defendant, (2) granted summary judgment, and (3) awarded prejudgment interest.  We affirm the trial court's judgment
                

After a property execution against the partnership was returned unsatisfied, the plaintiffs commenced the present action against the general partners of Laurel Associates, claiming that they were jointly and severally liable for the 1991 judgment against the partnership.

While this action was pending in the trial court, the defendant Steven Kordiak died, and Jeanette Kordiak was appointed executrix of his estate. Additional facts are included in the analysis of each issue.

I SUBSTITUTION OF EXECUTRIX

The defendants first complain that the trial court improperly granted the plaintiff's motion to substitute Jeanette Kordiak, executrix of the estate of Steven Kordiak, as a party defendant.

The record discloses that the defendant Steven Kordiak died on April 7, 1992, about four months after the initiation of this action. On September 14, 1992, his widow, Jeanette M. Kordiak, was appointed executrix of his estate. On January 28, 1994, the plaintiffs moved to substitute her, in her fiduciary capacity, as a party defendant. In their motion, the plaintiffs alleged that they had never received written notification of Steven Kordiak's death. The trial court, Ripley, J., found that there was good cause to grant the motion and did so on February 28, 1994.

We commence our analysis by noting that this issue does not pertain to the defendant Winslow. The case against him could have proceeded regardless of whether Kordiak's executrix was ever substituted as a party defendant. See Bundy v. Williams, 1 Root 543 (1793); General Statutes § 52-600. ³ Winslow is not aggrieved by the trial court's decision because he had no personal or legal interest that was affected. Thus, Winslow could not prevail on this claim. We will consider the claim, therefore, only insofar as it affects the defendant Jeanette Kordiak as executrix of her late husband's estate.

Although at common law the death of a party abated an action; Barton v. New Haven, 74 Conn. 729, 730, 52 A. 403 (1902); by virtue of General Statutes § 52-599, ⁴ this cause of action survives Steven Kordiak's death. The defendant Jeanette Kordiak focuses Kordiak bases her argument on a 1987 change in the statute. Prior to the 1987 amendment, the relevant portion of § 52-599(b) allowed a plaintiff one year from the date of a decedent's death to seek substitution of the fiduciary. In Dorsey v. Honeyman, 141 Conn. 397, 400, 107 A.2d 260 (1954), the Supreme Court, following a line of cases going back to 1904, ⁵ held that even after expiration of the statutory time period, the trial court had discretion to order substitution upon a showing of good cause.

on General Statutes § 52-599(b), which provides that in the event of a defendant's death, "the plaintiff, within one year after receiving written notification of the 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...." She argues that, as used in this statute, the word "may" is mandatory and, therefore, the trial court lacked authority to grant substitution after expiration of one year, even upon a finding of good cause to do so.

The 1987 amendment, Public Acts 1987, No. 87-237(b) (P.A. 87-237), changed the one year starting date from the date of death to one year from receipt of written notice of death by the plaintiff. Although Kordiak presented several arguments as to why she believes the legislature made the change, her arguments are bereft of any supporting citation to legislative history. In Schoolhouse Corp. v. Wood, 43 Conn.App. 586, 684 A.2d 1191 (1996), cert. denied, 240 Conn. 913, 691 A.2d 1079 (1997), this court considered a late motion for substitution of a fiduciary in a case arising subsequent to P.A. 87-237 and followed a "good cause" standard. Although this was a tacit recognition that P.A. 87-237 did not change the existing law, whether a change had been made was not the focus of the Schoolhouse decision. In order that there be no uncertainty in the law, we undertake such an analysis at this time.

We are furnished no reason to believe that when the legislature enacted P.A. 87-237(b), it intended to change anything other than the starting date of the one year period. This construction is consistent with the presumption that an amendatory act does not change the existing law further than is expressly declared or necessarily implied. Doe v. Institute of Living, Inc., 175 Conn. 49, 63, 392 A.2d 491 (1978). Furthermore, when the legislature amends a statute, it is presumed that it was aware of long standing judicial decisions interpreting former versions of the statute. Faraday v. Dube, 175 Conn. 438, 443, 399 A.2d 1262 (1978). Thus, we presume that the 1987 legislature was aware that the courts had construed this statute to allow trial courts discretion to permit late substitution of fiduciaries upon a showing of good cause.

Accordingly, we are not persuaded that the 1987 amendment to General Statutes § 52-599(b) was intended to abolish the long standing judicial discretion to allow substitution of a fiduciary, at any time, upon a showing of good cause.

We turn now to the question of whether, under the circumstances of this case, the trial court properly determined that there was good cause to permit substitution of Kordiak as a party defendant. "Good cause is defined as a substantial reason amounting in law to a legal excuse for failing to perform an act required by law [and][l]egally sufficient ground or reason." (Internal quotation marks omitted.) Schoolhouse v. Wood, supra, 43 Conn.App. at 591, 684 A.2d 1191. In other applications, the Supreme Court has held that "the trial court is to exercise broad discretion in determining whether good cause exists in a given case." Berry v. Loiseau, 223 Conn. 786, 800, 614 A.2d 414 (1992); Rokus v. Bridgeport, 191 Conn. 62, 72, 463 A.2d 252 (1983); Clemens v. Harris, 120 Conn. 111, 113-14, 179 A. 334 (1935). Thus, we analyze this claim to determine if the trial court abused its broad discretion in allowing substitution of the executrix.

"Judicial discretion is always legal discretion, exercised according to the recognized principles of equity.... The action of the trial court is not to be disturbed unless it abused its legal discretion, and [i]n determining The record here discloses that on February 9, 1993, the plaintiffs filed a request for leave to file a substitute complaint, in which they intended to effect a substitution of the executrix for her deceased husband. ⁶ Although this was an incorrect pleading to achieve the intended result, the defendants did not object and, in fact, shortly thereafter, they filed a request to amend in which they sought to add an additional special defense. Their request was purportedly filed by "the defendants Steven Kordiak and Jonathan Winslow." Although the authority of Kordiak's counsel had expired with his death, the same counsel continued to act as if he had authority to defend the case long after Steven Kordiak's death and long prior to the filing of an appearance on behalf of the executrix. This conduct caused the plaintiffs to believe that defense counsel had authority to act for the executrix and were defending the case on her behalf. The plaintiffs reasonably believed that, as a result of their February 9, 1993 request to file a substitute complaint, the substitution had in fact occurred.

this the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did." (Citations omitted; internal quotation marks omitted). DiPalma v. Wiesen, 163 Conn. 293, 298-99, 303 A.2d 709 (1972). The trial court's discretion "should be exercised in conformity with the spirit of the law and should not impede or defeat the ends of substantial justice." (Internal quotation marks omitted.) Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 575, 620 A.2d 118 (1993).

Kordiak does not claim any prejudice from the late substitution of February 28, 1994, because she responded to the request to leave to file a substitute complaint in 1993. We recognize that although the absence of prejudice without more may not constitute good cause; General Accident Ins. Co. v. McGee, 33 Conn.App. 626, 637 A.2d 792 (1994); it may be taken into consideration.

The trial court properly examined the totality of the circumstances, which...