Bordiere v. Ciarcia Construction, LLC

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MARCUS BORDIERE v. CIARCIA
CONSTRUCTION, LLC, ET AL.
(AC 41145)
DiPentima, C. J., and Keller and Harper, Js.

Syllabus

The plaintiff, M, brought an action against the defendant C, alleging, inter
alia, that C had failed to make payments due on a mortgage note held
by M. In May, 2009, after a trial, the trial court rendered judgment in
favor of M. In July, 2013, M died and, subsequently, in July, 2017, his
wife, P, as executrix of his estate, filed a motion to open the judgment
and to substitute herself as the plaintiff, which the court denied. In
October, 2017, P again filed a motion to substitute herself as the plaintiff,
which the court granted. The court also vacated its prior order denying
the July, 2017 motion to open and C appealed to this court. Held that
P should not have been substituted as the plaintiff, as the trial court
erred in premising its decision to open the judgment and to substitute
P as the plaintiff on a statute (§ 52-107) which is inapplicable in instances
in which a case has reached final judgment: the statutory language
of § 52-107 clearly and unambiguously conveys the meaning that it is
applicable only in cases in which an action is presently pending before
the court, and not in cases in which a final judgment has been rendered,
and, in the present case, there was no action pending before the court
at the time it relied on § 52-107 to grant P’s motion to substitute herself
as the plaintiff, as P’s motions were filed approximately four years after
the death of M and eight years after final judgment was rendered in the
present case; moreover, although P claimed that the right of survival
statute (§ 52-599) provided the court with broad discretion to grant her
untimely motion to substitute herself as the plaintiff on a showing of
good cause, the record failed to support the plaintiff’s claim that the court
must have considered § 52-599 and conducted a good cause analysis,
as it was clear from the language of the court’s articulation, which did not
cite to § 52-599, that it, instead, considered and relied on the standards
provided in § 52-107 and our rule of practice (§ 9-18), both of which
govern the intervention of nonparties, and, even if it were true that the
court utilized its discretion under § 52-599 to grant P’s untimely motion
to open the judgment and to substitute herself as the plaintiff, neither
P nor the court had pointed to any evidence that would support a finding
of a reason amounting in law as a legal excuse for P’s four year delay
in seeking to participate in the present case.
Argued November 14, 2019—officially released February 25, 2020

Procedural History

Action to recover on a promissory note, and for other
relief, brought to the Superior Court in the judicial dis-
trict of New Britain and tried to the court, Pittman, J.;
judgment for the plaintiff; thereafter, the court, Hon.
Joseph M. Shortall, judge trial referee, denied the
motion filed by Patricia Bordiere, the executrix of the
estate of Marcus Bordiere, to open the judgment and to
be substituted as the plaintiff; subsequently, the court,
Hon. Joseph M. Shortall, judge trial referee, vacated its
prior order and granted the executrix’ motion to be
substituted as the plaintiff, and the defendant Michael
Ciarcia appealed to this court. Reversed; judgment
directed.
Michael Ciarcia, self-represented, the appellant
(defendant).
John C. Matulis, Jr., for the appellee (substitute
plaintiff).
Opinion

HARPER, J. The self-represented defendant Michael
Ciarcia1 appeals from the judgment of the trial court
granting the motion of Patricia Bordiere, the executrix
of the estate of Marcus Bordiere, to open a prior judg-
ment rendered in favor of the plaintiff, Marcus Bordiere,
and to substitute herself as the plaintiff for purposes
of enforcing the prior judgment by pursuing an after-
discovered asset of the defendant. Specifically, the
defendant claims that the trial court erred in relying on
General Statutes § 52-107 to grant the executrix’ motion
to substitute herself as the plaintiff, as there was no
case pending at the time she filed her motion to substi-
tute and, thus, no case in which she could participate.
We agree with the defendant and, accordingly, reverse
the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. On December 20,
2007, the plaintiff filed a complaint against the defen-
dant, alleging, inter alia, that the defendant had failed
to make payments due on a mortgage note held by the
plaintiff. On May 19, 2009, after trial, the trial court
rendered judgment in favor of the plaintiff (judgment
case). Subsequently, on July 11, 2013, the plaintiff died
and, on August 7, 2013, his wife, Patricia Bordiere, was
appointed as the executrix of his estate (executrix).
Between May 19, 2009 and July 17, 2017, there were no
postjudgment proceedings relevant to the judgment
case.
The executrix filed an application in the Probate
Court, dated April 13, 2017, to open the estate of the
decedent in order to pursue an after-discovered asset
owned by the defendant, to which the defendant
objected.2 The Probate Court granted her motion to
open the estate on May 23, 2017.
Soon thereafter, on July 17, 2017, the executrix filed
a motion in the Superior Court to open the judgment
case and to substitute herself as the plaintiff. The defen-
dant objected to this motion on July 19, 2017. On July
31, 2017, the court denied the motion to open the judg-
ment case and to substitute the plaintiff, stating that:
‘‘The [executrix] cites no authority and the court knows
of none that would permit the court to open this judg-
ment [rendered] in 2009.’’
The executrix filed a new motion to substitute herself
as the plaintiff, dated October 4, 2017, in which she
stated: ‘‘The [executrix] is not seeking to open the judg-
ment here—merely to be substituted as the party plain-
tiff for the [plaintiff], pursuant to her obligations as the
executrix of his estate.’’ (Emphasis in original.) The
defendant objected to this motion on October 20, 2017.
On November 6, 2017, the court granted the October
4, 2017 motion and also, under a separate order, vacated
its prior order denying the July 17, 2017 motion to open
the judgment filed by the executrix. The court’s order
granting the October 4, 2017 motion provided: ‘‘The
parties having failed to appear for argument at 9:30 a.m.
today, as ordered by the court (Wiese, J.), the court
has considered the matter on the [papers]. The motion
is [granted].’’ The court’s order vacating its prior order
provided: ‘‘The court vacates its prior order and grants
the motion to open for the limited purpose of substitut-
ing the executrix.’’ The defendant filed a motion to
reargue on November 16, 2017, which the court denied
on November 21, 2017. This appeal followed.
On December 12, 2017, the defendant filed a motion
for articulation in the trial court. On January 12, 2018,
the court provided the following articulation: ‘‘The
court granted the motion to open for the purpose of
substituting [the executrix] as the party plaintiff
because the action of the Probate Court in June, 2017,
reopening the estate upon the petition of [the executrix]
made it apparent that a ‘complete determination’ of the
controversy before this court could not be had without
the presence of [the executrix] as a party. See General
Statutes § 52-107; Practice Book § 9-18.’’3 The defendant
filed a motion for further articulation on January 19,
2018, which was thereafter denied by the court on Janu-
ary 26, 2018.
On appeal, the defendant claims that the court erred
in granting the executrix’ October 4, 2017 motion and
in vacating its prior denial of the July 17, 2017 motion
filed by the executrix. The defendant essentially makes
two distinct arguments in support of his claim on appeal
that require us to conduct an inquiry into the language
of our General Statutes.4 First, the defendant argues
that the court erred in premising its decision to open
the judgment and to substitute the executrix as the
plaintiff on § 52-107, which he argues is inapplicable in
instances in which a case has reached final judgment.
Second, the defendant argues that if the executrix
wanted to substitute herself as the plaintiff, a timely
motion pursuant to General Statutes § 52-599,5 our right
of survival statute, was the proper vehicle by which
to do so. The defendant contends that, because the
executrix’ motion to substitute was filed outside the
six month period provided for by the right of survival
statute, the executrix effectively abandoned her ability
to substitute as of right. The defendant further argues
that the court’s January 12, 2018 articulation did not
provide a good cause analysis as contemplated by § 52-
599 and, therefore, that the court could not utilize its
discretion to grant the executrix’ untimely motion on
the basis of a showing of good cause. We address these
two arguments in turn.
We first set forth the applicable standard of review.
‘‘The principles that govern statutory construction are
well established. When construing a statute, [o]ur fun-
damental objective is to ascertain and give effect to the
apparent intent of the legislature. . . . In other words,
we seek to determine, in a reasoned manner, the mean-
ing of the statutory language as applied to the facts
of [the] case, including the question of whether the
language actually does apply. . . . In seeking to deter-
mine that meaning, General Statutes § 1-2z directs us
first to consider the text of the statute itself and its
relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence of
the meaning of the statute shall not be considered. . . .
When a statute is not plain and unambiguous, we also
look for interpretive guidance to the legislative history
and circumstances surrounding its enactment, to the
legislative policy it was designed to implement, and to
its relationship to existing legislation and [common-
law] principles governing the same general subject mat-
ter . . . .’’ (Internal quotation marks omitted.) South-
ern New England Telephone Co. v. Cashman, 283 Conn.
644, 650–51, 931 A.2d 142 (2007).
The statute relevant to the defendant’s first argument
in support of his claim on appeal is § 52-107, which
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 par-
ties 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.’’
(Emphasis added.) The phrase ‘‘determine the contro-
versy as between the parties before it’’ makes clear
that, in order for this statute to have effect, the case
in which a party seeks to intervene must be pending
before the court at the time the court considers the
motion to intervene pursuant to § 52-107. Additionally,
the statute’s use of the present tense form of the verb
‘‘determine,’’ along with the phrase, ‘‘if a complete deter-
mination cannot be had,’’ makes clear that, at the time
the court considers the motion to intervene, the issues
before it must not have already been determined, and,
therefore, a judgment must not have been rendered.
Further, the phrase, ‘‘which the judgment will affect,’’
contemplates interests which the judgment, once it is
rendered, will affect in the future. In no instance does
the text of § 52-107 discuss the possibility of intervening
after a case has been resolved. In sum, the statutory
language clearly and unambiguously conveys the mean-
ing that § 52-107 is applicable only in cases in which
an action is presently pending before the court, and
not in cases in which a judgment has been rendered.
Therefore, we need not construe the statute by refer-
ence to its legislative history or purpose.
In the present case, there was no action pending
before the court at the time it relied on § 52-107 to
grant the executrix’ motion to substitute herself as the
plaintiff. The executrix’ motions to substitute herself
as the plaintiff were filed on July 17 and October 5,
2017—approximately four years after the death of the
plaintiff and eight years after the judgment was ren-
dered in the case. During the eight years between the
rendering of judgment and the executrix’ motions, there
was no case pending in the Superior Court. The last
action in the judgment case—the rendering of judgment
in favor of the plaintiff on May 19, 2009—was a final
disposition as to all parties involved. The issues
between the original parties, namely, the liability of the
defendant and the amount owed to the plaintiff, had
been determined and a final decree had been entered.
Accordingly, on the basis of our interpretation of the
clear and unambiguous language of § 52-107, as applied
to the facts of the present case, we conclude that the
executrix should not have been permitted to substitute
as the plaintiff by way of intervening pursuant to
§ 52-107.
The defendant’s second argument in support of his
claim on appeal is that the proper vehicle for substitut-
ing as the plaintiff in this case would have been a motion
to substitute pursuant to § 52-599, filed by the executrix
within six months of the death of the plaintiff.
According to the defendant, had the executrix filed a
motion pursuant to § 52-599 within the prescribed time
frame, she would have been able to revive the judgment
case and to substitute as the plaintiff.6 As the defendant
explains, however, the executrix’ motion—filed four
years after the plaintiff’s death—was untimely and,
therefore, not in compliance with the right of sur-
vival statute.
In opposition, despite never having pleaded good
cause in either of her motions filed in the trial court,
the executrix contends that § 52-599 provided the court
with broad discretion to grant her untimely motion on
a showing of good cause. She argues that the court was
aware of the revival of suit statute when it made its
decision and, therefore, must have concluded that good
cause existed to grant her motion. The defendant, how-
ever, argues that the court’s articulation of its decision
does not satisfy the requisite good cause analysis and,
indeed, makes no reference to § 52-599 whatsoever. We
agree with the defendant.
Our case law recognizes ‘‘good cause’’ in the context
of § 52-599 as being 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.) Warner
v. Lancia, 46 Conn. App. 150, 155, 698 A.2d 938 (1997).
Additionally, ‘‘the language of § 52-599 . . . has been
construed to mean that the fiduciary may be substituted
as a matter of right within the time prescribed by the
statute, but the court in its discretion may permit the
fiduciary to be substituted after the time prescribed for
good cause shown.’’ Negro v. Metas, 110 Conn. App.
485, 498, 955 A.2d 599, cert. denied, 289 Conn. 949, 960
A.2d 1037 (2008). We follow, as we must, this long-
standing judicial interpretation of the statute.
Contrary to the assertion of the executrix, the notion
that the court must have considered § 52-599 and con-
ducted a good cause analysis is unsupported by the
record. ‘‘As an appellate court, we are limited to the
record before us in deciding the merits of an appeal.’’
In re Amanda A., 58 Conn. App. 451, 461, 755 A.2d 243
(2000). Therefore, ‘‘it is not an appropriate function of
this court to speculate as to the trial court’s reasoning
. . . .’’ Atelier Constantin Popescu, LLC v. JC Corp.,
134 Conn. App. 731, 763, 49 A.3d 1003 (2012). As is set
forth previously, the court’s articulation of its reason
for granting the executrix’ motion states in its entirety:
‘‘The court granted the motion to open for the purpose
of substituting [the executrix] as the party plaintiff
because the action of the Probate Court in June, 2017,
reopening the estate upon the petition of [the executrix]
made it apparent that a ‘complete determination’ of the
controversy before this court could not be had without
the presence of [the executrix] as a party. See General
Statutes § 52-107; Practice Book § 9-18.’’ It is clear from
the language of the court’s articulation that it consid-
ered and relied on the nearly identical standards pro-
vided in § 52-107 and Practice Book § 9-18, both of
which govern the intervention of nonparties. The
court’s articulation did not cite to § 52-599; therefore,
we cannot speculate that the court ever considered
§ 52-599 in granting the executrix’ motion to substitute
herself as the plaintiff.
Finally, even if it were true, as the executrix contends,
that the court utilized its discretion under § 52-599 to
grant her untimely motion to open the judgment and
to substitute as the plaintiff, neither the executrix nor
the court has pointed to any evidence that would sup-
port a finding of a reason amounting in law as a legal
excuse for the executrix’ four year delay in seeking to
participate in the judgment case. Therefore, any reli-
ance on § 52-599 in the present case, without more,
would be misplaced.
The judgment is reversed and the case is remanded
with direction to deny the motion to open and the
motion to substitute the executrix as the plaintiff.
In this opinion the other judges concurred.
1
The complaint also named as defendants Ciarcia Construction, LLC, and
ALC Realty, LLC. Since the judgment in favor of Marcus Bordiere was
rendered in 2009, Ciarcia Construction, LLC, and ALC Realty, LLC, have
been dissolved by the secretary of the state and have not participated in
this appeal. We use the term the defendant in this opinion to refer to Michael
Ciarcia in his individual capacity only.
2
In an effort to protect the interest of the estate of Marcus Bordiere in
the May 19, 2009 judgment, a judgment lien for the amount of the judgment
was placed on the title to a Rocky Hill property that is considered to be an
after-discovered asset owned by the defendant. The judgment lien is dated
November 29, 2016, and is recorded at volume 667, pages 312–14 of the
Rocky Hill land records.
3
Practice Book § 9-18 provides: ‘‘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. (See General Statutes § 52-107 and
annotations.)’’
4
In addition, the defendant argues that the second motion of the executrix,
seeking to substitute herself as the plaintiff in the judgment case should
have been barred on res judicata grounds. Because the defendant did not
raise res judicata before the trial court, we decline to address this claim.
See Nweeia v. Nweeia, 142 Conn. App. 613, 618, 64 A.3d 1251 (2013) (‘‘to
permit a party to raise a claim on appeal that has not been raised at trial—
after it is too late for the trial court . . . to address the claim—would
encourage trial by ambuscade, which is unfair to both the trial court and
the opposing party’’ (internal quotation marks omitted)).
5
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 plaintiff dies, his executor or
administrator may enter within six months of the plaintiff’s death or at any
time prior to the action commencing trial and prosecute the action in the
same manner as his testator or intestate might have done if he had lived.
. . .’’
6
In his brief on appeal, the defendant states: ‘‘Section 52-599 . . . is the
sole remedy for the representatives of a deceased sole plaintiff or defendant
to revive the original action. . . . [T]he death of [the plaintiff] did not defeat
the right of the [e]xecutrix to pursue the judgment, but to avail herself of
that right, she was required to take the necessary steps to timely revive the
judgment case by making a timely § 52-599 motion for substitution in the
judgment case.’’