Cocchia v. Testa

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

FRANCIS A. COCCHIA, Plaintiff/Appellee,

v.

ROBERT J. TESTA, JR., et al., Defendants/Appellants.

No. 1 CA-CV 20-0392
FILED 3-11-2021

Appeal from the Superior Court in Maricopa County
No. CV2019-013395
The Honorable Lindsay P. Abramson, Judge Pro Tempore

VACATED AND REMANDED

COUNSEL

David T. Bonfiglio, PC, Scottsdale
By David T. Bonfiglio
Counsel for Plaintiff/Appellee

Maynard Cronin Erickson Curran & Reiter, PLC, Phoenix
By Douglas C. Erickson
Counsel for Defendants/Appellants
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Decision of the Court

MEMORANDUM DECISION

Acting Presiding Judge Samuel A. Thumma delivered the decision of the
Court, in which Judge Brian Y. Furuya and Judge David B. Gass joined.

T H U M M A, Judge:

¶1 This case involves related litigation in Connecticut and
Arizona, complicated by various factors, including a father and a son with
extremely similar names. In this appeal, Robert J. Testa challenges the
Arizona Superior Court’s determination that he consented to the
jurisdiction of the Connecticut court and maintains that the resulting
Connecticut judgment could not properly be domesticated and enforced in
Arizona. Because the Connecticut judgment currently is on appeal and is
not yet final, the Arizona court’s order is vacated, and this matter is
remanded.

FACTS AND PROCEDURAL HISTORY

¶2 In April 2015, Robert and Karen Testa, husband and wife,
created the Karen M. Testa Separate Property Trust (Trust) and transferred
an Arizona house to the Trust. Robert and Karen Testa have a son also
named Robert Testa. For clarity, Robert the elder is referred to as “Father”
and Robert the younger as “Son.”

¶3 In March 2016, Francis Cocchia sued Father in Connecticut
Superior Court. Cocchia alleged that Father defaulted on an indemnity
agreement and owed Cocchia more than $165,000.

¶4 In April 2017, Father and Karen were killed in a car accident.
Son then became the successor trustee of the Trust.

¶5 In February 2018, Cocchia sought to amend his Connecticut
complaint to allege that the transfer of the Arizona house to the Trust was
a fraudulent conveyance. Although Cocchia’s filings with the Connecticut
court indicate that the amended complaint also sought “to add [as] a
Defendant” the Trust, neither the Trust nor Son are listed in the caption or
otherwise appear to be joined as parties. Cocchia apparently never served
this amended complaint.

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¶6 In May 2018, Cocchia filed a suit in Maricopa County Superior
Court against Father, Mother (both individually and as trustee), the Trust,
“John Doe, successor trustee,” and “unknown heirs or devisees of any
deceased defendants.” In February 2019, after Son answered, Cocchia and
Son stipulated to stay that action pending the outcome of the Connecticut
case. This first Arizona case remains pending.

¶7 At about this same time, in Connecticut, Cocchia moved “to
substitute Robert J. Testa, Jr., Trustee of the [Trust] . . . as the Defendant.”
Cocchia alleged that no estate for Father had been opened in Connecticut,
that Cocchia’s first Arizona case was pending, and that “[t]he Defendants
therein are attempting to avoid the Plaintiff’s debt by claiming the instant
action in Connecticut is the controlling case or venue.” The Connecticut
court granted Cocchia’s motion and, in March 2019, Cocchia apparently
filed an amended complaint asserting breach of contract and fraudulent
conveyance claims. The caption of that March 2019 complaint lists “Robert
J. Testa, Jr., Trustee of the” Trust as the sole defendant; Son’s name,
however, is not “Robert J. Testa, Jr.”

¶8 Before he was killed, Father had retained counsel in the
Connecticut case. That attorney later stated he was never served or
provided any filings in the Connecticut case after the court granted
Cocchia’s motion to substitute. Cocchia also had not attempted to join Son
in the Connecticut case before his motion to substitute. Cocchia claims he
served the March 2019 amended complaint in the Connecticut case by
personally serving Son in Cave Creek, Arizona. Son, however, did not
answer or otherwise respond to the March 2019 amended complaint. Son
later declared that he did not receive actual notice of the Connecticut case
when it was filed nor notice of any effort to default him individually or as
Trustee.

¶9 In May 2019, the Connecticut court found Son failed to appear
and “a default for failure to appear was entered.” In August 2019, based on
information Cocchia provided, the Connecticut court issued a
“Memorandum of Decision” awarding Cocchia $206,348 and finding that
the transfer of the Arizona house to the Trust “was fraudulent as to
[Cocchia] and to the extent of the amount of the judgment.”

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¶10 In October 2019, Cocchia made filings in this second Arizona
case to domesticate the Connecticut Memorandum of Decision in Maricopa
County Superior Court in this case. In December 2019, Son moved to set
aside and vacate judgment and preclude enforcement, claiming he was not
properly named, and the Connecticut court lacked personal jurisdiction
over him.

¶11 Meanwhile, in Connecticut, Son moved to open, set aside and
vacate judgment, and filed a motion to dismiss. Additional motion practice
followed, and the Connecticut court held a hearing, apparently denying
Son’s motions. Son then filed a motion for clarification. In March 2020, the
Connecticut court issued an order explaining that (1) substitution of Son as
trustee as a party was appropriate; (2) Cocchia demonstrated that Son as
trustee was personally served in Arizona; and (3) entry of default against
Son was appropriate. No explanation, however, was provided regarding
the denial of Son’s motion to dismiss.

¶12 Later in March 2020, Son filed a notice of appeal to the
Connecticut Court of Appeals, arguing the Connecticut court “never had
personal jurisdiction over” him. From the information provided, it appears
the Connecticut Court of Appeals has not yet issued a decision in that
appeal, which remains pending.

¶13 Six days after Son filed his March 2020 appeal in Connecticut,
the Arizona court denied Son’s motion to set aside and vacate judgment
and preclude its enforcement. Although Son asked the Arizona court to take
judicial notice of various filings from the Connecticut proceedings that are
part of the record on appeal, Ariz. R. Evid. 201, it is unclear whether the
Arizona court did so.

¶14 The parties later stipulated to postpone a sheriff’s sale of the
house, citing Connecticut authority that automatically stays the
enforcement of a judgment while an appeal is pending. Conn. R. App. P. §
61-11(a). The Arizona court accepted that stipulation and issued an order
staying enforcement until the Connecticut appeal is resolved. After denying
Son’s motion to reconsider its March 2020 ruling, the Arizona court entered
a final judgment rejecting Son’s challenges in June 2020. This court has
jurisdiction over Son’s timely appeal pursuant to Article 6, Section 9, of the

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Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections
12-120.21(A)(1) and -2101(A)(1)(2021).1

DISCUSSION

¶15 At its core, Son’s argument is that the Arizona court erred in
rejecting his claim that the Connecticut judgment was “void and invalid”
for the same two reasons he argued to the Connecticut court: (1) lack of
proper service; and (2) lack of personal jurisdiction over Son.

¶16 The Full Faith and Credit Clause of the United States
Constitution “obliges the states to respect and enforce judgments rendered
in the courts of their sister states.” U.S. Const. art. IV, § 1. “A duly
authenticated judgment of a sister state is prima facie evidence of that
state’s jurisdiction to render it and of the right which it purports to
adjudicate.” Oyakawa v. Gillett, 175 Ariz. 226, 229 (App. 1993). But such a
judgment is not binding if it was rendered without jurisdiction over the
defendant. Phares v. Nutter, 125 Ariz. 291, 293 (1980); Bebeau v. Berger, 22
Ariz. App. 522, 523 (1974). The challenger of the validity of the foreign
judgment bears the burden of proof to show it is invalid. Oyakawa, 175 Ariz.
at 229.

¶17 “A defendant served with a lawsuit in another state may
litigate that state’s jurisdiction in that suit, or may let the suit go to judgment
by default and collaterally attack the jurisdiction when the plaintiff
attempts to enforce the judgment elsewhere.” Giehrl v. Royal Aloha Vacation
Club, Inc., 188 Ariz. 456, 458 (App. 1997). The state where domestication is
sought may inquire into the rendering court’s jurisdiction but may not
ignore a prior judgment that has determined the rendering court’s
jurisdiction in a matter; “[t]o do so would violate the Full Faith and Credit
Clause.” Id. A defendant who appears in the proceedings and litigates the
jurisdictional issues is “bound on that issue by the doctrine of res judicata.”
Id. at 457 (quoting Matson v. Matson, 310 N.W.2d 502, 506 (Minn. 1981)).

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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¶18 “Because the judgment of a sister state must be final before
full faith and credit attaches, [this court looks to Connecticut] law to
determine when the judgment in this case became final.” See Grynberg v.
Shaffer, 216 Ariz. 256, 258 ¶ 8 (App. 2007). Under Connecticut law,

[t]he test of finality is whether the rights of the
parties are concluded so that further
proceedings cannot affect them . . . The rights of
the parties, in so far as they were capable of
being affected by any subsequent proceedings
connected with the matter then in court, were
forever concluded. Nothing further remained to
be decided by the court. The appeal was
terminated. The issues which it presented were
all resolved.

Watson v. Howard, 86 A.2d 67, 68–69 (Conn. 1952) (internal citations
omitted).

¶19 Along with this governing case law by the Connecticut
Supreme Court, a Connecticut court rule automatically stays “proceedings
to enforce or carry out . . . judgment[s] or order[s] until the time to file an
appeal has expired. If an appeal is filed, such proceedings shall be stayed
until the final determination of the cause.” Conn. R. App. P. § 61-11(a). By
statute, Arizona has a comparable provision recognizing that a pending
appeal for a jurisdiction from another state presumptively precludes
enforcement. “If the judgment debtor shows the superior court that an
appeal from the foreign judgment is pending or will be taken, or that a stay
of execution has been granted, the court shall stay enforcement of the
foreign judgment until the appeal is concluded[.]” A.R.S. § 12-1704(A).

¶20 Given the pendency of the appeal in the Connecticut case, the
judgment in that proceeding is not yet final under this authority, meaning
full faith and credit obligations have not yet attached. Grynberg, 216 Ariz. at
258 ¶ 8. Accordingly, the Arizona court’s consideration of the issues raised
here must await final resolution of the Connecticut case. It will be for the
superior court in the first instance to determine the extent to which Son and
the Trust have litigated jurisdiction in Connecticut and the impact, if any,
of res judicata in this case.

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CONCLUSION

¶21 The judgment is vacated, and this matter is remanded for
further proceedings following final resolution of the Connecticut appeal. In
directing such a remand, this court need not — and expressly does not —
address the differing views expressed by the parties on the validity of the
Connecticut judgment, recognizing doing so is premature given the
pendency of the appeal in Connecticut. Each party’s request for an award
of attorneys’ fees on appeal pursuant to A.R.S. § 12-341.01 is denied without
prejudice pending the final resolution of this matter. Son is awarded his
taxable costs on appeal contingent upon his compliance with Ariz. R. Civ.
App. P. 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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