Martinelli v. Martinelli

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Martinelli v. Martinelli

AUBRI E. MARTINELLI ET AL. v.
MARTIN P. MARTINELLI ET AL.
(AC 46208)
Bright, C. J., and Moll and Suarez, Js.

Syllabus

The plaintiffs, the sole beneficiaries of the decedent’s estate, appealed from
the judgment of the trial court granting the motions to dismiss filed by
the defendants, M and R Co. M, as executor of the decedent’s estate,
retained R Co., a law firm, to represent him as executor and to provide
legal assistance with the administration of the estate. The plaintiffs
brought an action against M for breach of fiduciary duty, alleging that
M misled them as to the value of the estate’s business interests and
forced them to agree to a sale of those interests. R Co. represented M
in the action, and, at the conclusion of the plaintiffs’ case-in-chief at
trial, the court rendered a judgment of dismissal pursuant to the rule
of practice (§ 15-8) for failure to make out a prima facie case. Thereafter,
the Probate Court removed M as executor of the estate and appointed
S, a third-party attorney, as the administratrix of the estate. The plaintiffs
subsequently brought the underlying action in the present case, alleging
that M, without permission of the court or notice to the plaintiffs,
advanced himself more than $265,000 from the estate to pay R Co. to
defend him in the first action, that M’s use of estate assets for his own
personal legal fees constituted, inter alia, a breach of the fiduciary duty
he owed to the plaintiffs as beneficiaries of the estate, and that R Co.
committed legal malpractice by breaching the duty of loyalty and fidelity
it owed to the plaintiffs as beneficiaries of the estate when it assisted
M in converting estate assets. After the defendants filed separate motions
to dismiss for lack of subject matter jurisdiction, the plaintiffs sought
leave to file an amended complaint pursuant to the rule of practice
(§ 10-60). The court declined to consider the plaintiffs’ request for leave
to amend their complaint and granted the defendants’ motions to dis-
miss, finding that the plaintiffs lacked standing to assert their claims.
Held:
1. The trial court correctly concluded that it lacked subject matter jurisdic-
tion and properly dismissed the plaintiffs’ complaint; because it was
clear from the allegations in the operative complaint that the plaintiffs
were seeking to recover for injuries to the estate and not for any direct
injury to the plaintiffs, the only basis for them to recover would have
been for them to allege that S, as the administratrix of the estate,
improperly refused to pursue the claims against the defendants, and the
absence of allegations in the plaintiffs’ operative complaint that S had
committed some type of fraud or bad act against the estate or that she
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Martinelli v. Martinelli
could not or improperly refused to bring an action against the defendants
on behalf of the estate was fatal to the plaintiffs’ claim of standing.
2. The plaintiffs could not prevail on their claim that the trial court improperly
declined to consider their request for leave to amend their complaint
to include specific allegations related to S: as soon as the jurisdiction
of the court was called into question by the defendants’ motions to
dismiss, the court was required to make a determination regarding its
jurisdiction prior to all other action in the case, and, pursuant to Gurli-
acci v. Mayer (218 Conn. 531), the court properly considered the motions
to dismiss on the basis of the operative complaint and not the plaintiffs’
proposed amended complaint; moreover, even if this court concluded
that the trial court should have permitted the plaintiffs to amend their
complaint, the result would have been the same, as the proposed
amended complaint failed to allege that S improperly refused or
neglected to bring claims against the defendants, that she acted fraudu-
lently or in bad faith, or that she was grossly negligent.
Argued March 7—officially released July 9, 2024

Procedural History

Action to recover damages for, inter alia, breach of
fiduciary duty, and for other relief, brought to the Supe-
rior Court in the judicial district of New Britain, where
the court, Knox, J., granted the defendants’ motions to
dismiss and rendered judgment thereon, from which
the plaintiffs appealed to this court. Affirmed.
Kenneth A. Votre, for the appellants (plaintiffs).
Robert B. Flynn, for the appellee (named defendant).
Herbert J. Shepardson, for the appellee (defendant
Reid & Riege, P.C.).
Opinion

BRIGHT, C. J. In the latest chapter in this family
dispute arising out of the administration of the estate
of Kevin P. Martinelli (Kevin), the plaintiffs, Aubri E.
Martinelli, Zachary Martinelli, and Linzy Martinelli, who
are Kevin’s children, appeal from the judgment of the
trial court granting the motions to dismiss filed by the
defendants, Martin P. Martinelli (Martin), who is Kevin’s
brother and was the first executor of Kevin’s estate,
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Martinelli v. Martinelli

and Reid & Riege, P.C. (Reid & Riege), the law firm
that represented Martin in the administration of Kevin’s
estate. The court concluded that the plaintiffs lacked
standing to assert their claims of breach of fiduciary
duty, common-law conversion, and statutory theft
against Martin and their legal malpractice claim against
Reid & Riege.1 On appeal, the plaintiffs claim that the
trial court improperly (1) concluded that they lacked
standing to assert their claims against the defendants,
and (2) denied their request to amend their complaint.
We are unpersuaded by either claim and, therefore,
affirm the judgment of the trial court.
The following facts, either as alleged in the plaintiffs’
complaint or undisputed in the record, and procedural
history are relevant to our analysis. Kevin died testate
on June 19, 2015. The plaintiffs are the sole named
beneficiaries of Kevin’s estate. In August, 2015, Martin
was appointed by the Bristol-Plymouth Probate Court
to act as the executor of Kevin’s estate. Martin, in turn,
retained Reid & Riege to represent him as executor and
to provide legal assistance with the administration of
the estate. Kevin, Martin, and their brother, Keith Marti-
nelli (Keith), had joint business interests. As aptly
described by the trial court in its January 13, 2023 mem-
orandum of decision, ‘‘[a]t the time of [Kevin’s] death,
each brother owned a percentage of the common stock
in Tri-Mar Manufacturing Company, Inc. (Tri-Mar);
Kevin had a 49.82 percent ownership [interest]; Martin
had a 0.36 percent ownership interest; and Keith had
a 49.82 percent ownership interest. In addition, Kevin,
1
The court also dismissed the counts in the plaintiffs’ complaint in which
the plaintiffs alleged that Reid & Riege violated the Connecticut Unfair Trade
Practices Act (CUTPA), General Statutes § 42-110a et seq., and that the
defendants engaged in a civil conspiracy. In their reply brief to this court,
the plaintiffs expressly abandoned any claim related to the trial court’s
dismissal of their CUTPA claim, and, at oral argument before this court,
they abandoned any claim related to the trial court’s dismissal of their
conspiracy claim against both defendants.
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at the time of his death, owned a 50 percent partnership
interest in MKK Company (MKK) and Keith owned the
remaining 50 percent partnership interest’’ in MKK. As
executor of Kevin’s estate, Martin purported to sell the
estate’s interest in Tri-Mar and MKK to Keith for
$600,000. As recounted in their complaint in the present
case, because ‘‘Martin misled them as to the value of
Kevin’s interests in Tri-Mar and MKK as being far lower
than they believed and [because] Martin forced them
to agree to the sale,’’ the plaintiffs sued Martin for
breaching the fiduciary duties he owed them. See Marti-
nelli v. Martinelli, Superior Court, judicial district of
New Britain, Docket No. CV-XX-XXXXXXX-S (first action).
In particular, the plaintiffs alleged in the first action
that Martin breached fiduciary duties owed to them
that were ‘‘separate and independent of any duties’’ he
owed to Kevin’s estate.
Martin retained Reid & Riege to represent him in
the first action. After extensive pleading and motion
practice, the first action proceeded to trial before the
court, Aurigemma, J., on April 27, 2022. At the conclu-
sion of the plaintiffs’ case-in-chief, the court rendered
a judgment of dismissal ‘‘pursuant to Practice Book
§ 15-8, for failure to make out a prima facie case.’’ The
plaintiffs appealed from the judgment in the first action.
On June 29, 2022, however, this court dismissed the
appeal due to the plaintiffs’ failure to file the preliminary
appellate papers required by Practice Book § 63-4 (a).2
In their complaint in the present action, dated March
10, 2022, the plaintiffs allege that Martin, without per-
mission of the court or notice to the plaintiffs, advanced
2
This court’s dismissal order was in response to Martin’s June 1, 2022
motion to dismiss the appeal due to the plaintiffs’ failure to comply with
Practice Book § 63-4 (a). In the intervening four weeks between when that
motion was filed and when this court dismissed the appeal, the plaintiffs
filed neither an opposition to the motion nor the required preliminary papers.
After the appeal was dismissed, this court granted Martin’s motion for
sanctions, which was filed with his motion to dismiss, and ordered counsel
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himself more than $265,000 from the estate to pay
Reid & Riege to defend him in the first action. They
further allege that, during 2019, Martin filed with the
Probate Court an interim accounting requesting $94,000
from Kevin’s estate to cover Martin’s personal legal
fees. The plaintiffs claim in their complaint that Martin’s
use of assets of the estate for his own personal legal
fees constituted a breach of the fiduciary duty he owed
to the plaintiffs as the beneficiaries of Kevin’s estate,
common-law conversion, and statutory theft in viola-
tion of General Statutes § 52-564.3 They further allege
that Reid & Riege assisted Martin in converting assets
of Kevin’s estate and, in doing so, committed legal mal-
practice by breaching the duty of loyalty and fidelity it
owed to the plaintiffs as beneficiaries of the estate. On
December 30, 2021, the Probate Court removed Martin
as the executor of Kevin’s estate and appointed Attor-
ney Rachel Kittredge Shipman as the administratrix of
the estate.
In May, 2022, the defendants filed separate motions
to dismiss for lack of subject matter jurisdiction. Martin
claimed that the plaintiffs lacked standing to assert their
claims against him and that their claims were not ripe
for review. In particular, he argued that any claims
arising out of his use of estate assets to pay the fees
he incurred in defending the first action belonged to
Attorney Shipman as the administratrix of Kevin’s
estate and not to the plaintiffs as beneficiaries of the
estate. Martin further argued that the plaintiffs’ claims
were not ripe because the ‘‘plaintiffs’ alleged injury to
the estate has not yet occurred,’’ as the Probate Court
had not ruled on Martin’s requests for disbursements
for the plaintiffs to pay attorney’s fees in the amount of $4883 to Reid &
Riege for fees Martin incurred in defending the appeal.
3
In their complaint, the plaintiffs cited General Statutes § 52-56 in support
of their statutory theft claim. Because that statute is inapplicable to the
present action, we presume that the plaintiffs intended to cite § 52-564,
which sets forth the remedy of treble damages for statutory theft.
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to pay his personal legal fees, which fees the plaintiffs
allege ‘‘the Probate Court expressly recognized . . .
could well be not reimbursable.’’
Reid & Riege argued that the plaintiffs lacked stand-
ing, that their claims were not ripe for review, and
that the conduct giving rise to the plaintiffs’ claims is
protected by the litigation privilege. With respect to
standing, Reid & Riege argued that the plaintiffs do not
have standing to recover damages on behalf of Kevin’s
estate and that they cannot recover damages individu-
ally because they were neither clients of the law firm
nor third-party beneficiaries of the services provided
to Martin.4
The plaintiffs filed a written opposition to Martin’s
motion to dismiss. In response to Martin’s argument
that they lack standing, the plaintiffs relied on § 107 (2)
(b) of the Restatement (Third) of Trusts, which pro-
vides an exception to the general rule that trust benefici-
aries lack standing to bring an action on behalf of the
trust ‘‘only if . . . the trustee is unable, unavailable,
unsuitable, or improperly failing to protect the benefi-
ciary’s interest.’’ 4 Restatement (Third), Trusts § 107,
p. 102 (2012).5 The plaintiffs argued that, as beneficiar-
ies of Kevin’s estate, they had standing to bring an
action directly against Martin because the current
administratrix, Attorney Shipman, was ‘‘unable,
unavailable, unsuitable, or improperly failing to pro-
tect’’ their interests. With respect to ripeness, the plain-
tiffs argued that their claims are ripe because ‘‘[t]he
4
In support of its motion, Reid & Riege submitted the affidavit of one of
its attorneys, Mary Miller, who was involved in the representation of Martin
in the first action.
5
‘‘(1) A trustee may maintain a proceeding against a third party on behalf
of the trust and its beneficiaries. (2) A beneficiary may maintain a proceeding
related to the trust or its property against a third party only if: (a) the
beneficiary is in possession, or entitled to immediate distribution, of the
trust property involved; or (b) the trustee is unable, unavailable, unsuitable,
or improperly failing to protect the beneficiary’s interest.’’ 4 Restatement
(Third), supra, § 107.
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acts complained of by the [plaintiffs] are complete. The
defendants received the funds [that] were removed
from Kevin’s estate. The invoices were fully paid.’’ The
plaintiffs did not file a written opposition to Reid &
Riege’s motion.
On June 24, 2022, however, the plaintiffs sought leave
of the court to file an amended complaint pursuant
to Practice Book § 10-60 to address the defendants’
arguments in their motions to dismiss that the plaintiffs
lacked standing. The plaintiffs stated in their request:
‘‘The defendants allege a lack of standing based on the
plaintiffs’ failure to plead that the administratrix refused
to pursue a claim against them. Beneficiaries to a trust
can have standing to pursue a claim against a third
party who injured the trust only if the trustee improperly
failed to sue the third party. Browning v. Van Brunt,
DuBiago & Co., LLC, 330 Conn. 447, 460, 195 A.3d 1123
(2018). The amended complaint properly alleges that
the current administratrix . . . has refused or
neglected to sue the defendants named in this action.’’
The defendants objected to the plaintiffs’ request,
arguing that, because the proposed amended complaint
was not filed as a matter of right pursuant to Practice
Book § 10-59, the court could not rule on the request
to amend until after it determined that it had subject
matter jurisdiction over the case.
After hearing oral argument on the motions to dis-
miss,6 the court dismissed the action, concluding that
the plaintiffs lack standing to assert their claims. As to
Reid & Riege, the court noted, inter alia, that, ‘‘consider-
ing [that] the damages being sought in the complaint
concern funds that were allegedly removed improperly
from the assets of the estate by its fiduciary, only the
6
The court also granted the request of counsel for Reid & Riege to file
a reply brief following oral argument to address cases that counsel for the
plaintiffs had raised for the first time during oral argument.
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estate has been potentially harmed by [Reid & Riege’s]
actions and, therefore, only the estate, by way of its
legal representative, would have standing to bring an
action against [it]. See Geremia v. Geremia, 159 Conn.
App. 751, 783–84, 125 A.3d 549 (2015); see also Litvack
v. Artusio, [137 Conn. App. 397, 403–405, 49 A.3d 762
(2012)].’’
With respect to Martin, the court was unpersuaded
by the plaintiffs’ reliance on § 107 (2) (b) of the
Restatement (Third) of Trusts. As an initial matter, the
court noted that, although the present case involves an
estate rather than a trust, the plaintiffs cited no author-
ity for applying § 107 of the Restatement (Third) of
Trusts to an estate. Nonetheless, the court, assuming
that § 107 of the Restatement (Third) of Trusts should
be applied to the plaintiffs’ complaint, concluded that
the plaintiffs’ allegations in their complaint were insuffi-
cient to confer standing on them because ‘‘[c]learly
missing from the allegations in the operative complaint
are any facts that support [the assertion] that the benefi-
ciaries are entitled to possession or immediate distribu-
tion of estate assets, that Attorney Shipman has commit-
ted some type of fraud or bad act against the estate,
or that Attorney Shipman cannot or has refused to bring
an action against the defendants on behalf of the estate
improperly. To be clear, there are no allegations in the
operative complaint that support any inference that
Attorney Shipman is ‘unable, unavailable, unsuitable,
or improperly failing to protect the beneficiar[ies’] inter-
est.’ 4 Restatement (Third), supra, § 107 (2) (b). In fact,
the court cannot draw any reasonable inferences, as
the plaintiffs ask the court to do, concerning Attorney
Shipman, who is not a party to this action, as her name
and/or her appointment as the administratrix of the
estate is not mentioned in the complaint, and the plain-
tiffs’ attempts to remedy these deficiencies by filing
an amended complaint or by proffering the missing
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Martinelli v. Martinelli

allegations in their brief and during oral argument are
equally unsuccessful.’’ The court explained in a footnote
two reasons why the plaintiffs’ attempt to cure their
pleading deficiencies through their request for leave to
amend failed: the plaintiffs’ request did not comply with
Practice Book § 10-60, and the court could not consider
the request while the motions to dismiss for lack of
subject matter jurisdiction were pending.
Ultimately, the court concluded, inter alia, that the
plaintiffs lacked standing because any claim against the
defendants could only be brought by Attorney Shipman
as the administratrix of Kevin’s estate. Because it con-
cluded that the plaintiffs lacked standing to pursue their
claims against the defendants, the court did not con-
sider the defendants’ argument that the plaintiffs’ claims
were not ripe or Reid & Riege’s argument that its actions
on which the plaintiffs’ claims were based were pro-
tected by the litigation privilege. This appeal followed.
I
The plaintiffs first claim that the court improperly
concluded that they lacked standing to assert their
claims against the defendants. We are not persuaded.
We begin our analysis with the applicable standard
of review and the relevant legal principles regarding
standing. ‘‘A trial court’s determination of whether a
plaintiff lacks standing is a conclusion of law that is
subject to plenary review on appeal.’’ (Internal quota-
tion marks omitted.) Jefferson Solar, LLC v. FuelCell
Energy, Inc., 224 Conn. App. 710, 722, 315 A.3d 302
(2024). ‘‘The question of whether a party has standing
to bring an action implicates the court’s subject matter
jurisdiction. . . . Standing is the legal right to set judi-
cial machinery in motion. One cannot rightfully invoke
the jurisdiction of the court unless he [or she] has,
in an individual or representative capacity, some real
interest in the cause of action, or a legal or equitable
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right, title or interest in the subject matter of the contro-
versy. . . . When standing is put in issue, the question
is whether the person whose standing is challenged is
a proper party to request an adjudication of the issue
. . . . Standing requires no more than a colorable claim
of injury; a [party] ordinarily establishes . . . standing
by allegations of injury [that he or she has suffered or
is likely to suffer]. Similarly, standing exists to attempt
to vindicate arguably protected interests. . . .
‘‘Standing is established by showing that the party
claiming it is authorized by statute to bring suit or is
classically aggrieved. . . . The fundamental test for
determining [classical] aggrievement encompasses a
well-settled twofold determination: first, the party
claiming aggrievement must successfully demonstrate
a specific, personal and legal interest in [the subject
matter of the challenged action], as distinguished from
a general interest, such as is the concern of all members
of the community as a whole. Second, the party claiming
aggrievement must successfully establish that this spe-
cific personal and legal interest has been specially and
injuriously affected by the [challenged action]. . . .
Aggrievement is established if there is a possibility, as
distinguished from a certainty, that some legally pro-
tected interest . . . has been adversely affected.’’
(Citations omitted; internal quotation marks omitted.)
Browning v. Van Brunt, DuBiago & Co., LLC, supra,
330 Conn. 454–55. ‘‘[O]nly those individuals who have
suffered a direct injury would have standing.’’ (Empha-
sis omitted.) Broadnax v. New Haven, 270 Conn. 133,
156, 851 A.2d 1113 (2004). ‘‘It is axiomatic that a party
does not have standing to raise the rights of another.’’
Frillici v. Westport, 264 Conn. 266, 281, 823 A.2d
1172 (2003).
‘‘[L]ack of subject matter jurisdiction may be found
in any one of three instances: (1) the complaint alone;
(2) the complaint supplemented by undisputed facts
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Martinelli v. Martinelli

evidenced in the record; or (3) the complaint supple-
mented by undisputed facts plus the court’s resolution
of disputed facts. . . . When a trial court decides a
jurisdictional question raised by a pretrial motion to
dismiss on the basis of the complaint alone, it must
consider the allegations of the complaint in their most
favorable light. . . . In this regard, a court must take
the facts to be those alleged in the complaint, including
those facts necessarily implied from the allegations,
construing them in a manner most favorable to the
pleader. . . . In contrast, if the complaint is supple-
mented by undisputed facts established by affidavits
submitted in support of the motion to dismiss . . . the
trial court, in determining the jurisdictional issue, may
consider these supplementary undisputed facts and
need not conclusively presume the validity of the allega-
tions of the complaint. . . . Rather, those allegations
are tempered by the light shed on them by the [supple-
mentary undisputed facts]. . . . If affidavits and/or
other evidence submitted in support of a defendant’s
motion to dismiss conclusively establish that jurisdic-
tion is lacking, and the plaintiff fails to undermine this
conclusion with counteraffidavits . . . or other evi-
dence, the trial court may dismiss the action without
further proceedings.’’ (Citations omitted; emphasis
omitted; footnote omitted; internal quotation marks
omitted.) Conboy v. State, 292 Conn. 642, 651–52, 974
A.2d 669 (2009).
In the present case, Martin’s motion to dismiss was
predicated solely on alleged inadequacies in the plain-
tiffs’ complaint. Similarly, the court concluded that the
plaintiffs’ complaint failed to allege any personal losses
attributable to Reid & Riege’s actions.7 We, therefore,
7
The court also concluded that the plaintiffs did not have standing to sue
Reid & Riege for malpractice because they never were clients of the law
firm. In reaching this conclusion, the court relied in part on the affidavit of
Attorney Mary Miller. See footnote 4 of this opinion. Because the plaintiffs
do not dispute the facts set forth in that affidavit, the court properly consid-
ered it when ruling on Reid & Riege’s motion to dismiss. In light of our
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review the allegations of the plaintiffs’ complaint de
novo to determine whether the allegations are sufficient
to confer standing on the plaintiffs.
As a general rule, ‘‘[a]ctions designed to recover per-
sonalty belonging to the estate or for its use, conversion,
or injury are brought by the fiduciary rather than by
the beneficiaries.’’ (Internal quotation marks omitted.)
Geremia v. Geremia, supra, 159 Conn. App. 781–82.
Consistent with this rule, General Statutes § 45a-234
(18) ‘‘vests in an administrator or executor the exclusive
power ‘[t]o compromise, adjust, arbitrate, sue on or
defend, abandon, or otherwise deal with and settle
claims in favor [of] or against the estate . . . as the
fiduciary shall deem advisable . . . .’ ’’ Geremia v. Ger-
emia, supra, 785. Section 45a-234 (18) further provides
in relevant part that the administrator or executor’s
decision regarding the pursuit of claims on behalf of
the estate ‘‘shall be conclusive between the fiduciary
and the beneficiaries of the estate . . . in the absence
of fraud, bad faith or gross negligence of the fidu-
ciary. . . .’’
This court applied both this general rule and the
limited exception to it in Geremia. In that case, two
beneficiaries of the decedent’s estate brought an action
against other beneficiaries, alleging, inter alia, claims
of breach of fiduciary duty, conversion, statutory theft,
and unjust enrichment arising out of the defendants’
misappropriation of assets from the decedent. Geremia
v. Geremia, supra, 159 Conn. App. 760–61. In their com-
plaint, the plaintiffs alleged that ‘‘the estate of [the dece-
dent] contains considerably less assets than would oth-
erwise be the case because of the conduct of the
conclusion that the plaintiffs lack standing to assert their claims against
the defendants because the decision to bring such claims belongs to Attorney
Shipman as the administratrix of Kevin’s estate, we need not address the
additional ground on which the court relied, namely, that the plaintiffs lack
standing to pursue their malpractice claim against Reid & Riege. Conse-
quently, Attorney Miller’s affidavit is not relevant to our analysis.
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Martinelli v. Martinelli

defendants.’’ (Internal quotation marks omitted.) Id.,
786. In affirming the judgment of the trial court dismiss-
ing the plaintiffs’ claims, this court concluded that ‘‘the
counts alleging breach of fiduciary duty and unjust
enrichment, as well as those alleging conversion and
statutory theft with respect to property belonging to
[the decedent], all plead[ed] injuries derivative of those
allegedly sustained by her estate. They do not amount
to colorable claims of direct injury to the plaintiffs.
Accordingly, the plaintiffs lack standing to maintain
those actions before the Superior Court. The court prop-
erly dismissed those counts for lack of subject matter
jurisdiction.’’ Id., 788. In reaching this conclusion, the
court held that the limited exception in § 45a-234 (18),
which might allow for a direct claim by the beneficiar-
ies, did not apply because ‘‘[a]bsent from the operative
complaint is any allegation of fraud, bad faith, or gross
negligence on the part of the administratrix of [the
decedent’s] estate.’’ Id., 787.
The same is true in the present case. First, it is clear
from the allegations of the complaint that the plaintiffs
are seeking to recover for injuries to the estate. For
example, in their breach of fiduciary duty count against
Martin, the plaintiffs allege that Martin ‘‘converted
estate funds to himself to satisfy his personal obliga-
tions to Reid & Riege’’ and that ‘‘Martin paid Reid &
Riege directly from the assets of the estate at least
$265,000 to pay his legal fees without a hearing or
approval of the Probate Court and without affording
the [plaintiffs] an opportunity to object.’’ The plaintiffs
further allege, as to Martin, that they were ‘‘damaged
in the loss of a substantial portion of the estate to which
they [were] entitled.’’ These allegations were incorpo-
rated by reference into the plaintiffs’ conversion and
statutory theft counts against Martin. In addition, in
the conversion count, the plaintiffs further allege that
‘‘Martin without right converted estate assets subject
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Martinelli v. Martinelli

to his possession and control to his own personal use
and contrary to Connecticut law and right or justifica-
tion.’’
Similarly, in the legal malpractice count against
Reid & Riege, the plaintiffs allege that the law firm
breached the standard of care by advising Martin ‘‘to
convert $250,000 of estate funds to pay his legal fees
to Reid & Riege and contrary to the best interests of
the [plaintiffs].’’ They further allege that, as a result of
Reid & Riege’s conduct, they have been damaged in
that ‘‘the value of their interests in the estate has been
diminished and legal fees have been incurred.’’
Second, because the complaint fails to allege any
direct injury to the plaintiffs, the only basis for them
to recover losses suffered by the estate would have
been for them to allege that Attorney Shipman, as the
administratrix for the estate, improperly refused to pur-
sue the claims against the defendants. As the trial court
noted, however, the plaintiffs’ operative complaint con-
tains no allegations that ‘‘Attorney Shipman has com-
mitted some type of fraud or bad act against the estate,
or that Attorney Shipman cannot or has refused to bring
an action against the defendants on behalf of the estate
improperly.’’ Our own review of the complaint confirms
that the court was correct. Although the operative com-
plaint sets forth the allegation that Martin was removed
as the executor of Kevin’s estate, it does not even men-
tion Attorney Shipman by name or title. In fact, it makes
no mention of the appointment of a new administratrix
of Kevin’s estate and consequently does not allege that
the administratrix improperly refused to pursue claims
against the defendants. The absence of such an allega-
tion is fatal to the plaintiffs’ claim of standing. Conse-
quently, the court correctly concluded that it lacked
subject matter jurisdiction and properly dismissed the
plaintiffs’ complaint.8
8
The plaintiffs’ reliance on § 107 (2) (b) of the Restatement (Third) of
Trusts and our Supreme Court’s decision in Browning v. Van Brunt, DuBi-
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II
The plaintiffs also claim that the court improperly
declined to grant their request for leave to amend their
complaint to include specific allegations as to Attorney
Shipman. Essentially, the plaintiffs claim that they were
deprived of an opportunity to correct the jurisdictional
defect that resulted in the dismissal of their complaint
as discussed in part I of this opinion.
As an initial matter, we note that the court did not
deny the plaintiffs’ request for leave to amend. Instead,
it refused to consider it for two reasons. First, the
request did not comply with Practice Book § 10-60. Sec-
ond, the court concluded that it could not consider the
request because ‘‘the motion to dismiss the original
complaint based on subject matter jurisdiction was
pending.’’ As to its second basis, the court followed the
long-standing principle that ‘‘all other action in a case
comes to a halt once the issue of subject matter jurisdic-
tion has been raised . . . .’’ (Internal quotation marks
omitted.) Kelly v. Albertsen, 114 Conn. App. 600, 608,
970 A.2d 787 (2009).
The plaintiffs, relying on our Supreme Court’s deci-
sion in Fairfield Merrittview Ltd. Partnership v. Nor-
walk, 320 Conn. 535, 133 A.3d 140 (2016), argue that
ago & Co., LLC, supra, 330 Conn. 447, is misplaced for at least two reasons.
First, both § 107 (2) (b) of the Restatement (Third) of Trusts and Browning
address the question of under what circumstances the beneficiary of a trust
may pursue a direct claim when the trustee refuses to pursue the claim. As
the trial court in the present case noted, however, this case does not involve
a trust. The plaintiffs have provided us with no authority, and we are aware
of none, in which a court has applied § 107 (2) (b) of the Restatement
(Third) of Trusts to an estate.
Second, even if we were to assume that § 107 (2) (b) of the Restatement
(Third) of Trusts applied to the plaintiffs’ complaint, the result would be
the same. As previously noted in this opinion, the operative complaint makes
no mention of Attorney Shipman and therefore does not allege that she is
unable, unavailable, unsuitable, or improperly failing to protect the plaintiffs’
interests. See Browning v. Van Brunt, DuBiago & Co., LLC, supra, 330
Conn. 458–60.
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the court had the authority to permit the amendment
in response to the motion to dismiss and improperly
failed to do so. We are not persuaded.
‘‘[A]lthough we ordinarily review a court’s decision
on a request to amend a pleading for an abuse of discre-
tion; see KDM Services, LLC v. DRVN Enterprises, Inc.,
211 Conn. App. 135, 140, 271 A.3d 1103 (2022); in the
present case, the issue is whether the court properly
concluded that it [did not have] the authority in the
first instance to permit the amendment, which is a ques-
tion of law over which we exercise plenary review.’’
Gervais v. JACC Healthcare Center of Danielson, LLC,
221 Conn. App. 148, 162, 300 A.3d 1244 (2023).9
Our Supreme Court addressed the precise question
before us in Gurliacci v. Mayer, 218 Conn. 531, 590
A.2d 914 (1991). In that case, the plaintiff, a Stamford
police officer, sued George Mayer, the then deputy chief
of the Stamford Police Department, and the city of
Stamford for injuries she claimed to have suffered when
Mayer, who was driving while intoxicated, struck the
rear of the plaintiff’s unmarked police car. Id., 534. ‘‘On
April 2, 1985, Mayer . . . moved to dismiss the action
for lack of subject matter jurisdiction based on the
9
Reid & Riege correctly notes in its appellate brief that the plaintiffs have
not challenged on appeal the court’s conclusion that the request for leave
to amend did not comply with Practice Book § 10-60. We often have said
that when a trial court’s decision is based on two independent grounds, and
the appellant challenges only one of those grounds on appeal, his claim is
moot because we can offer no practical relief in light of the unchallenged
basis for the court’s decision. See, e.g., Finley v. Western Express, Inc., 205
Conn. App. 473, 479–80, 257 A.3d 395 (2021). We conclude that that principle
does not apply here because the court’s determination that it lacked authority
to rule on the request for leave to amend effectively precluded it from
exercising its discretion to determine whether the plaintiffs’ failure to comply
with § 10-60 warranted denying the request. In fact, as previously noted in
this opinion, the court never ruled on the request. Consequently, we limit
our consideration to the questions of whether the court correctly concluded
that it did not have the authority to address the request and whether any
error in that regard was harmless.
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fellow employee immunity provision of General Stat-
utes (Rev. to 1983) § 7-465. On May 10, 1985, the plaintiff
requested permission of the court to amend her com-
plaint. The plaintiff’s request was granted over Mayer’s
objection. On May 30, 1985, the court . . . denied the
motion to dismiss for lack of subject matter jurisdic-
tion.’’ (Footnote omitted.) Id., 536–37. After the jury
awarded the plaintiff $485,000 in compensatory dam-
ages and the trial court denied Mayer’s motion to set
aside the verdict, Mayer appealed. Id., 539.

On appeal, Mayer claimed, inter alia, that the trial
court had improperly determined that it had subject
matter jurisdiction over the plaintiff’s claim and improp-
erly permitted the plaintiff to amend her complaint
while the motion to dismiss was pending. Id., 541–45.
After the Supreme Court concluded that the plaintiff’s
complaint was within the trial court’s subject matter
jurisdiction; id., 545; it addressed Mayer’s claim that
the trial court had improperly ruled on the plaintiff’s
motion to amend her complaint before addressing May-
er’s motion to dismiss. The court explained: ‘‘It is axiom-
atic that once the issue of subject matter jurisdiction
is raised, it must be immediately acted upon by the
court. . . . In this case, the trial court allowed the
plaintiff to amend her complaint prior to ruling on the
motion to dismiss. By considering the motion to amend
prior to ruling on the challenge to the court’s subject
matter jurisdiction, the court acted inconsistently with
the rule that, as soon as the jurisdiction of the court
to decide an issue is called into question, all other action
in the case must come to a halt until such a determina-
tion is made.’’ (Citations omitted.) Id., 545. The court
then concluded that the trial court’s error was harmless
because, ‘‘even had the motion to dismiss been heard
prior to the amendment of the complaint, it should have
been denied.’’ Id.
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Martinelli v. Martinelli

This court, relying on Gurliacci, has concluded that
a trial court, when addressing a motion to dismiss for
lack of standing, ‘‘properly considered the motion to
dismiss on the basis of the operative complaint and
not the plaintiff’s proposed amended complaint.’’ North
Star Contracting Corp. v. Albright, 156 Conn. App. 311,
315 n.5, 112 A.3d 216 (2015); see also Cumberland
Farms, Inc. v. Dubois, 154 Conn. App. 448, 455 n.7, 107
A.3d 995 (2014) (‘‘once the defendant filed his motion
to dismiss on the ground that the court lacked subject
matter jurisdiction, the court was required to refrain
from acting on the plaintiff’s request to amend its com-
plaint’’). Consequently, the trial court in the present
case properly applied this precedent by considering
the defendants’ motions to dismiss on the basis of the
operative complaint rather than the plaintiffs’ proposed
amended complaint.

The plaintiffs’ reliance on Fairfield Merrittview Ltd.
Partnership v. Norwalk, supra, 320 Conn. 535, is mis-
placed. In that case, our Supreme Court held that the
addition or substitution of a real party in interest as a
plaintiff, if allowed by the court, would cure any original
plaintiff’s lack of standing. Id., 547. Our Supreme Court,
in deciding this narrow issue, concluded that such an
amendment was an appropriate vehicle to cure a lack
of standing because ‘‘it is a type of jurisdictional defect
that our legislature, through the enactment of [General
Statutes] § 52-109, has deemed amenable to correction
and, therefore, not irremediably fatal to an action. That
statute provides: When any action has been commenced
in the name of the wrong person as plaintiff, the court
may, if satisfied that it was so commenced through
mistake, and that it is necessary for the determination
of the real matter in dispute so to do, allow any other
person to be substituted or added as plaintiff. General
Statutes § 52-109.
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‘‘[Our Supreme Court] has explained that § 52-109
allow[s] a substituted plaintiff to enter a case [w]hen
any action has been commenced in the name of the
wrong person as [the] plaintiff, and that such a substitu-
tion will relate back to and correct, retroactively, any
defect in a prior pleading concerning the identity of the
real party in interest. . . . Thus, a substitution of a
real party in interest as the plaintiff cures the lack of
standing of the original plaintiff . . . and, further, is
permissible even after the statute of limitations has run.
. . . An addition or substitution is discretionary, but
generally should be allowed when, due to an error,
misunderstanding or misconception, an action was
commenced in the name of the wrong party, instead of
the real party in interest, whose presence is required
for a determination of the matter in dispute.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) Fairfield Merrittview Ltd. Partnership v.
Norwalk, supra, 320 Conn. 552–53.
The present case does not involve a motion to add
or substitute a plaintiff who is the real party in interest.
To the contrary, the plaintiffs maintain that they have
the right to pursue their claims in lieu of the true owner
of those claims. Moreover, there is no statute akin to
§ 52-109 that suggests that a plaintiff who fails to suffi-
ciently allege a direct injury necessary for standing
should be permitted to amend her complaint to correct
that deficiency after the defendant has raised the issue
of standing in a motion to dismiss. Simply put, the
holding in Fairfield Merrittview Ltd. Partnership
addresses a wholly unrelated factual and legal scenario
and in no way undermines the holding or reasoning of
Gurliacci and its progeny.
Furthermore, even if we were to conclude that the
court should have permitted the plaintiffs to amend
their complaint, the result would be the same. In their
proposed amended complaint, the plaintiffs added two
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Martinelli v. Martinelli

new paragraphs that mention Attorney Shipman: ‘‘55.
The current administratrix of the estate, Attorney Ship-
man, was requested by the [plaintiffs] through counsel
to bring an action against the above-named defendants.
The administratrix has thus far refused or neglected to
do so. 56. It is believed that Attorney Shipman has or
will assign the right to pursue the estate and trust’s
claims against the defendants to the [plaintiffs].’’
Although these proposed amendments allege that Attor-
ney Shipman refused or neglected to bring the claims
against the defendants, even when afforded a broad
interpretation they do not allege that she did so improp-
erly, that she acted fraudulently or in bad faith, or that
she was grossly negligent. See General Statutes § 45a-
234 (18). The allegations of the proposed amended com-
plaint do not even meet the standard set forth in § 107
(2) (b) of the Restatement (Third) of Trusts that the
fiduciary is ‘‘unable, unavailable, unsuitable, or improp-
erly failing to protect the beneficiary’s interest.’’ Conse-
quently, even if the court had considered the plaintiffs’
proposed amended complaint when it ruled on the
defendants’ motions to dismiss, the result would have
been the same.
The judgment is affirmed.
In this opinion the other judges concurred.