Opinion
The plaintiffs, Lucas B. Stone and Joan L. Zygmunt, appeal from the judgment of the trial court granting the motions to strike and dismiss filed by the defendants, Thomas R. Gerarde, John J. Radshaw III, and Howd & Ludorf, LLC (Howd defendants).
The following facts and procedural history are pertinent to this appeal. The plaintiffs engaged Norman A. Pattis and the Law Offices of Norman A. Pattis, LLC (Pattis defendants), as counsel in their lawsuit filed in federal court against the town of Westport in 2003 (federal action). The Howd defendants were retained as counsel by the town of Westport. During the pen-dency of the federal action, the plaintiffs became dissatisfied with Pattis’ representation, and they filed a grievance with the federal grievance committee. Pattis withdrew his appearance in the federal action, and the plaintiffs proceeded self-represented until they finally withdrew the federal action. At time of the federal action and before Pattis’ withdrawal, the Howd defendants hired Christy Doyle, who formerly had been an associate at Williams and Pattis, LLC.
I
We turn first to the plaintiffs’ claim on appeal that judge trial referees improperly were involved in this case. The plaintiffs argue specifically that the Superior Court has no power to refer any matter to a referee unless all parties consent and they did not consent. We disagree that their consent was necessary forjudge trial referees to participate in their case.
Throughout the course of this extensive litigation, judge trial referees presided over pretrial matters. The plaintiffs primarily argue that Hon. Kevin Tierney, judge trial referee, did not have jurisdiction to issue the January 11, 2010 order stating that all defendants’ motions to strike be argued together. Further, the plaintiffs argue that Hon. A. William Mottolese, judge trial referee, should have recused himself, as Hon. Kevin Tierney, judge trial referee, had done at the plaintiffs’ request. Throughout the extensive motion practice of this case, Hon. Kevin Tierney and Hon. A. William Mottolese, judge trial referees, decided a number of motions. The last decision made by a judge trial referee in this matter was in August, 2010. The motions to strike and dismiss that are the subject of this appeal were decided by Judges Brazzel-Massaro and Blawie, respectively, neither of whom are judge trial referees.
“[A] referee is not a judge of the [S]uperior [C]ourt or the [C]ourt of [Cjommon [P]leas but is sui generis, [and] sits as a special tribunal. . . . The [judge trial]
II
The plaintiffs next claim that the court erred in considering the Howd defendants’ motion to strike the substitute complaint and in granting that motion. Specifically, the plaintiffs argue that the court should have decided the Howd defendants’ motion to strike the original complaint and that, even considering the substitute complaint, the court erred in determining that, as the opposing party in the federal action, the plaintiffs could not sue opposing counsel for actions in the federal action. We disagree.
A
We first turn to the plaintiffs’ claim that the court erred in considering the Howd defendants’ motion to strike the substitute complaint. The plaintiffs argue that their due process rights were violated
Pursuant to Practice Book § 10-61, when a pleading is amended, the adverse party may plead to the amended
B
The plaintiffs next claim that the court erred in granting the Howd defendants’ motion to strike the counts alleging conspiracy, tortious interference with a fiduciary relationship, fraud, breach of fiduciary duty, CUTPA violations, and abuse of process from the substitute complaint (stricken counts). The plaintiffs argue that Judge Brazzel-Massaro (1) ignored certain issues raised in the plaintiffs’ briefs and (2) improperly concluded that they had not adequately pleaded the
“A motion to strike attacks the legal sufficiency of the allegations in a pleading. ... In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein, and to determine whether those facts establish a valid cause of action. . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. . . . Because a motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court, our review of the court’s ruling [on a motion to strike] is plenary.” (Internal quotation marks omitted.) Kumah v. Brown, 307 Conn. 620, 626, 58 A.3d 247 (2013).
1
The plaintiffs claim that they were denied due process because the court ignored the conflict of interest issues raised by the plaintiffs in their memoranda in opposition to the Howd defendants’ motion to strike and allowed the Howd defendants to present a speaking motion. We disagree.
The purpose of a motion to strike hearing is to determine whether a party has pleaded facts sufficient to support a cause of action. Kumah v. Brown, supra, 307 Conn. 626. A trial court does not make factual findings at such a hearing. Id. In striking the count of breach of fiduciary duty, the court stated: “The plaintiffs claim that the fiduciary duty by opposing counsel arises out of the fact that Doyle was an attorney at [the Pattis defendants] and then switched to [the Howd defendants] while [the federal action] was still in progress. The plaintiffs fail to allege, however, that Doyle was
2
The plaintiffs also claim that the court erred in determining that they had failed to plead sufficiently the claims alleged in the stricken counts against the Howd defendants. Specifically, the plaintiffs argue that the court should not have relied on the Howd defendants’ immunity from suit by an opponent because the Howd defendants “colluded” with the Pattis defendants in the federal action and therefore exceeded the bounds of zealous representation, thereby eliminating their immunity.
In their challenge to the court’s ruling on the motion to strike, the plaintiffs do not address the legal sufficiency of each stricken count in their briefs. Instead, the plaintiffs rely solely on their argument that the Howd defendants’ hiring of Doyle created a conflict of interest and that such a conflict supports all of their claims as alleged in their substitute complaint.
“[D]etermining when attorneys should be held liable to parties with whom they are not in privity is a question of public policy. ... A central dimension of the attorney-client relationship is the attorney’s duty of [e]ntire devotion to the interest of the client. . . . This obligation would be undermined were an attorney to be held
The plaintiffs do briefly address the legal sufficiency of their count alleging abuse of process. They argue that the court ignored the plaintiffs’ allegations that the Howd defendants “enlisted several Westport police officers to repeatedly contact a subpoenaed witness.”
In Connecticut “an attorney may be sued for misconduct by those who have sustained a special injury because of an unauthorized use of legal process. In permitting such a cause of action, we must, however, take care not to adopt rules which will have a chilling and inhibitory effect on would-be litigants of justiciable issues.” (Internal quotation marks omitted.) Mozzochi v. Beck, 204 Conn. 490, 495, 529 A.2d 171 (1987). “An action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it was not
The plaintiffs allege that the Howd defendants conspired with the Pattis defendants regarding subpoenaed witnesses and notices of depositions and mail receipts. They do not, however, plead any specific conduct by the Howd defendants sufficient to support a cause of action for abuse of process. “[Although attorneys have a duty to their clients and to the judicial system not to pursue litigation that is utterly groundless, that duty does not give rise to a third party action for abuse of process unless the third party can point to specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation.” (Emphasis added; internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 100 Conn. App. 78. Although the plaintiffs generally allege fraudulent behavior, they do not allege specific injury or how the conduct by the Howd defendants was intended to cause them specific injury necessary for setting forth a claim of abuse of process.
Ill
The plaintiffs next claim that the court erred in overruling their objections to the Howd defendants’ request to revise and, consequently, in eliminating counts from the plaintiffs’ third amended complaint. Specifically, the plaintiffs argue that counts from a complaint can only be removed by a motion to strike, and that the court therefore erred in removing such claims by allowing the Howd defendants’ request to revise. We disagree with this inteipretation of our rules of practice.
“A trial court’s consideration of a request to revise and any objection thereto involves, inter alia, consideration of the factual allegations, the extent to which they are sufficiently precise or specific, and whether the allegations are unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper .... These considerations necessarily involve the trial court’s discretionary judgment. ... As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue ... is whether the trial court could have reasonably concluded as it did.” (Citations omitted; internal quotation marks omitted.) Cassotto v. Thibault, 131 Conn. App. 328, 335, 27 A.3d 399 (2011).
Practice Book § 10-35 states in relevant part: “Whenever a party desires to obtain ... (2) the deletion of any unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper allegations in an adverse party’s pleading ... or (4) any other appropriate correction in an adverse party’s pleading, the
Further, the plaintiffs argue that Practice Book § 10-44 allows them to file an amended complaint that adds new counts and allegations without the court’s leave. The plaintiffs misconstrue Practice Book § 10-44, which states in relevant part: “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading.” Practice Book § 10-44 grants the power to amend the portion of a complaint that has been stricken, not the power to revise a complaint entirely. See W. Horton & K. Knox, 1 Connecticut Practice Series: Procedure in Civil Matters (2011 Ed.) § 10-44, p. 547 (“Repleading after a motion to strike is limited to those areas which were stricken. . . . Additional pleadings, such as new actions, must be added under a request to amend [Citation omitted.]); see also East Greylock, LLC v. OBC Associates, Inc., Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket, Docket No. X08-CV-04-4002173 (May 4, 2007) (43 Conn. L. Rptr. 396) (“[e]ven though the pleading has been stricken, only the defective portion of the pleading is affected and, as provided by [Practice Book §] 10-44 . . . that part may be amended within fifteen days after the motion is granted” [internal quotation marks omitted]). Practice Book § 10-44 does not permit the plaintiffs to add new counts in subsequent amended complaints following
IV
Finally, the plaintiffs claim that the court erred by dismissing count fifteen of their fourth amended complaint.
“[A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. ... In undertaking this review, we are mindful of the well established notion that, in
In the fifteenth count of the fourth amended complaint, the plaintiffs alleged that the Howd defendants inflicted emotional distress on the plaintiffs by conspiring with the Pattis defendants not to disclose Doyle’s hiring, subpoenaing witnesses unduly, failing to call witnesses and not disclosing the reasons for such failure to the court. The plaintiffs claim further that the Howd defendants “should have realized that their repeated conduct of deception, unfairness and negligence against [the plaintiffs] involved an unreasonable risk of causing emotional distress . . . [and] as a result of the aforesaid misconduct of the defendants herein . . . the plaintiffs have suffered and continue to suffer damages.”
The Howd defendants moved to dismiss the plaintiffs’ claim of negligent infliction of emotional distress on the ground that the trial court lacked subject matter jurisdiction because they have absolute immunity from the plaintiffs’ claims. See Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005) (“[t]he doctrine of sovereign
In ruling on the motion to dismiss, the court, Blawie, J., concluded that “[t]here is no doubt . . . that the [federal action], and [the Howd defendants’] concomitant defense of that lawsuit, constituted a formal judicial proceeding. It is also clear that any grievance proceedings against a member of the bar such as were instituted here by the plaintiffs, either at the federal, state, and/or local level, fall squarely within the category
On appeal, the only claim we consider is negligent infliction of emotional distress. Although the plaintiffs claimed abuse of process in their substitute complaint, that count was properly stricken, and thus the plaintiffs’ allegations as to Doyle’s hiring and the question of a conflict of interest are extraneous to their remaining claim of negligent infliction of emotional distress. The question of litigation privilege with respect to negligent infliction of emotional distress is an issue of first impression. A recent decision from our Supreme Court is instructive in its elucidation of the history and application of immunity during judicial proceedings. In Simms v. Seaman, 308 Conn. 523, 546, 69 A.3d 880 (2013), the court clarified that a party is shielded from suit stemming from “conduct while representing or advocating for a client during a judicial proceeding that was brought for a proper purpose.” Id. In determining the scope of such immunity, the court differentiated between claims that challenge the “underlying purpose of the litigation [from those that challenge] an attorney’s role as advocate . . . .’’Id. Although the plaintiffs in the present case claim that their negligent infliction of emotional distress claim stems from their abuse of process claim, the substance of their allegations are based on actions taken and communications made by the Howd defendants during their defense of the town of Westport during the federal action. Thus, following the delineation set forth in Simms, their claim challenges the Howd defendants in their capacity as advocates for the town of Westport. Simms warns against suits “which could expose attorneys to harassing and
The plaintiffs’ allegations of various conspiracies with the Pattis defendants regarding the subpoenaing of witnesses, erroneous statements of fact to the federal court, and improper discussions with the Westport police department regarding subpoenaed witnesses are all, as the court correctly characterized, communications made within the context of a judicial proceeding, namely the federal action, rendering the Howd defendants absolutely immune from suit by the plaintiffs for any such communications. Further, “[t]he burden [is] upon the pleaders to make such averments that the material facts [alleged in a complaint] should appear with reasonable certainty .... Whenever that language fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties. . . . But essential allegations may not be supplied by conjecture or remote implication.” (Internal quotation marks omitted.) Daley v. Wesleyan University, 63 Conn. App. 119, 127, 772 A.2d 725, cert. denied, 256 Conn. 930, 776 A.2d 1145 (2001); see also Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985). We conclude, therefore, after reviewing the multitude of arguments the plaintiffs advance, that the allegations supporting their claim of negligent infliction of emotional distress are based on communications protected by absolute immunity from suit. See Chadha v. Charlotte Hungerford Hospital, supra, 272 Conn. 787 (“[a]t common law, communications uttered or published in the coruse of judicial proceedings are absolutely privileged so long
The judgment is affirmed.
In this opinion the other judges concurred.
The plaintiffs also named Norman A. Pattis and the Law Offices of Norman A. Pattis, LLC, as defendants in this case. The issues in this appeal solely pertain to the Howd defendants.
It is difficult to identify the nature and extent of the plaintiffs’ claims as set forth in their briefs. We have addressed the claims to the extent that they are analyzed. See Paoletta v. Anchor Beef Club at Branford, LLC, 123 Conn. App. 402, 406, 1 A.3d 1238 (“[f]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs” [internal quotation marks omitted]), cert. denied, 298 Conn. 931, 5 A.3d 491 (2010).
Williams and Pattis, LLC, a predecessor entity of the Pattis defendants, is not named in the present action.
In their substitute complaint, the plaintiffs allege that: “When we filed a motion pro se to disqualify [the Pattis defendants] on May 15, 2006, and also filed grievances with the Federal Grievance Committee against their individual attorneys, Attorney Doyle and Defendants Radshaw and Gerarde
Although the court overruled the plaintiffs’ objections to the Howd defendants’ request to revise the third amended complaint, which contained an amended count fifteen, the plaintiffs filed a fourth amended complaint with a differently amended count fifteen, to which the Howd defendants directed their motion to dismiss.
“A fundamental premise of due process is that a court cannot adjudicate any matter unless the parties have been given a reasonable opportunity to be heard on the issues involved .... It is a fundamental tenet of due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 10, of the Connecticut constitution that persons whose . . . rights will be affected by a court’s decision are entitled to be heard at a meaningful time and in a meaningful manner.” (Internal quotation marks omitted.) Bruno v. Bruno, 132 Conn. App. 339, 350, 31 A.3d 860 (2011).
Although the plaintiffs raise other issues with the procedural aspects of the Howd defendants’ motion to strike, we find their claims inadequately briefed, and we therefore decline to reach their merits.
The plaintiffs’ claim of untimely filing as to the Howd defendants’ motion to strike is without merit. Pursuant to Practice Book § 10-61, the Howd defendants were entitled to file a pleading on the plaintiffs’ substitute complaint. This claim is essentially addressed in part IIA of this opinion.
The plaintiffs claimed the same $400,000 damages in each of their tort claims against the Howd defendants. They do not allege from where they
The plaintiffs also argue that they were denied the right to amend their complaint pursuant to General Statutes §§ 52-128 and 52-130. Specifically, the plaintiffs claim that the court erred when it sustained the Howd defendants’ objection to the plaintiffs’ request for leave to amend the third amended complaint and when it sustained the Pattis defendants’ objection to the plaintiffs’ request to amend the fourth amended complaint. The Howd defendants argue that the plaintiffs have inadequately briefed this claim, as they have not provided the correct statutory provisions or a description of the court’s procedures giving rise to error. We agree with the Howd defendants and therefore decline to reach the merits of the plaintiffs’ argument on this claim.