Opinion
FBT135029935
03-21-2017
James T. Costello et al. v. Goldstein & Peck, P.C. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Michael P. Kamp, J.
The issue before the court is the defendants' motion to strike the plaintiffs' second amended complaint, alleging legal malpractice and unfair trade practices, on the ground of misjoinder of the plaintiffs' claims. For the reasons set forth below the motion to strike is granted.
FACTS
The plaintiffs, James T. Costello and Dorothy Costello, nee Smulley, filed the second amended complaint in this action on August 5, 2016. The plaintiffs bring count one, alleging legal malpractice, against William J. Kupinse and Andrew M. McPherson, and count two, alleging unfair trade practices in violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., against Goldstein & Peck, P.C. (the law firm).
Hereafter, Costello and Smulley will be referred to collectively as the plaintiffs, and individually by name, where appropriate.
Hereafter, Kupinse, McPherson, and the law firm will be referred to collectively as the defendants, and individually by name, where appropriate.
The plaintiffs allege the following facts. Smulley retained the defendants to represent her on June 16, 2008, when Juda Epstein, Smulley's former attorney, sued Smulley to collect legal fees (Epstein matter). Costello retained the defendants on November 18, 2008, to represent him in a dispute concerning the accountability of funds associated with the Lynwood Condominium Association, Inc. (Lynwood matter).
The plaintiffs make the following allegations concerning the Epstein matter. At some point prior to August 6, 2009, Kupinse and Epstein entered into a business arrangement wherein Epstein agreed to refer new clients to the defendants, for a fee. As the defendants took on more lucrative matters, the defendants set aside their work for Smulley, including the opposition to Epstein's motion for summary judgment, which the defendants filed nine months after Epstein's motion. In addition to repeatedly advising that Smulley exchange mutual withdrawals and releases with Epstein, the defendants delayed the Epstein matter without Smulley's knowledge or approval by filing for continuances and failing to object to Epstein's motion for a continuance until prompted by Smulley to do so. Smulley's special defenses and counterclaims were also amended at least five times, due to the defendants' errors.
Moreover, in connection with the Epstein matter, the plaintiffs allege the following with regard to the defendants' billing. In February of 2010, the defendants charged Smulley for the preparation of a trial that did not take place. On April 13, 2010, Kupinse demanded about $15,000 in order to continue with his representation, as well as $3,250 for an expert witness' fees. Although Smulley paid the expert's fees, she later learned that Kupinse failed to forward her payment, causing the expert to withdraw. On May 18, 2010, Kupinse demanded $25,000 in order to continue with his representation. Then, three months after Kupinse withdrew from the Epstein matter, Kupinse attempted to charge Smulley for unauthorized meetings, including meetings with: an attorney Smulley consulted with after Kupinse's withdrawal, the expert who withdrew from the Epstein matter, and a client Epstein referred to Kupinse.
The plaintiffs make the following allegations concerning the Lynwood matter. Although Kupinse sent Costello a copy of the motion to substitute receiver, Kupinse waited nearly five months before filing it with the court. When motions filed against Costello challenged his legal authority to act as a substitute receiver and accused him of misappropriating funds, Kupinse failed to file any responses in Costello's defense. After a court hearing in which Costello agreed to provide certain documents to opposing counsel, Costello sent those documents to Kupinse, but Kupinse failed to forward the documents. Costello's motion for reimbursement of attorneys fees failed because Kupinse failed to appear to reaffirm his motion in support thereof. Finally, immediately before and after withdrawing from the Lynwood matter, Kupinse sent Costello a bill for several hundred dollars for time spent with opposing counsel, though Kupinse provided no explanation for these charges.
The plaintiffs also allege the following facts concerning their relationship and their experiences with the defendants. The plaintiffs, who are married, participated in each other's dealings with the defendants and shared payment of the legal fees. The defendants failed to develop a strategic plan for the plaintiffs, instead filing claims that were easily defeated. Moreover, the conflict from the Epstein matter-in which Kupinse arranged with Epstein to accept client referrals-spilled into the Lynwood matter when the defendants' failure to provide competent legal representation resulted in the defendants making a deal with opposing counsel that was adverse to Costello's interests. Additionally, the defendants' billing records indicate that the plaintiffs' matters provided training for McPherson, resulting in the plaintiffs receiving excessive and unnecessary bills. Finally, the defendants withdrew from representing the plaintiffs within a three-day window; Kupinse filed a motion to withdraw from Smulley's Epstein matter on May 21, 2010, and sent an e-mail to Costello indicating his intent to withdraw from Costello's Lynwood matter on May 24, 2010.
On October 14, 2016, the defendants filed a motion to strike the plaintiffs' second amended complaint on the basis of improper joinder of the plaintiffs' claims. The motion is accompanied by a memorandum of law. The plaintiff filed a memorandum of law in opposition on November 14, 2016, with the following exhibits attached: a letter of engagement and the law firm's fee policy agreement, sent from Kupinse to Smulley, dated June 16, 2008, and; a check sent from Costello to the law firm, dated June 23, 2008. The defendants then filed a reply memorandum on November 17, 2016. The parties were heard at short calendar on November 28, 2016.
DISCUSSION
" [T]he exclusive remedy for misjoinder of parties . . . is by motion to strike." Bender v. Bender, 292 Conn. 696, 722 n.23, 975 A.2d 636 (2009); see also Practice Book § 11-3. " [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016).
" It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . We are limited . . . to a consideration of the facts alleged in the complaint." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268-69 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).
The defendants argue that the second amended complaint should be stricken on the ground that the plaintiffs' claims are not properly joined. Specifically, the defendants argue that the plaintiffs allege claims arising out of two separate underlying legal matters and that, as a result, the claims do not arise out of the same transaction or series of transactions and do not present common issue of law or fact. The defendants also contend that neither the plaintiffs' reliance on similar legal theories nor their spousal relationship properly joins the claims.
The plaintiffs respond with several arguments. First, the plaintiffs argue that there are common questions of law and fact; the defendants engaged in a " series of occurrences" involving the interests of other clients and attorneys, excessive fees, and case mismanagement. Relatedly, the plaintiffs argue that the defendants' motion did not " test the plaintiffs' causes of action individually" and, in doing so, presented the pleadings in a manner that failed to demonstrate these " connected occurrences." The plaintiffs also contend that given the flexibility of permissive joinder and the delays already faced by the parties to this litigation, considerations of due process and fundamental fairness support denying the defendants' motion. Next, the plaintiffs allege that their claims are properly joined because the plaintiffs executed only one contract to retain the defendants, and they further argue that the reason behind the defendants' motion is to eventually raise issues of res judicata and collateral estoppel. Finally, the plaintiffs assert that their marital relationship makes each spouse a necessary party.
The defendants' reply memorandum responds to many of the plaintiffs' arguments. In particular, the defendants maintain that similarities in the terms of engagement in each underlying legal matter, as well as similarities in the general topics the plaintiffs intend to address, do not establish that the claims are properly joined. The defendants also argue that the arguments concerning res judicata and collateral estoppel are meritless and that the plaintiffs' marital status does not render each plaintiff a necessary party to the other's action.
" All persons may be joined in one action as plaintiffs in whom any right of relief in respect to or arising out of the same transaction or series of transactions is alleged to exist either jointly or severally when, if such persons brought separate actions, any common question of law or fact would arise . . ." (Internal quotation marks omitted.) McCart v. City of Shelton, 81 Conn.App. 58, 60-61, 837 A.2d 872 (2003); see also General Statutes § 52-104.
" Historically, the Connecticut Supreme Court has taken a liberal approach to permissive joinder. See Goggins v. Fawcett, [145 Conn. 709, 710, 147 A.2d 187 (1958)]; Craft Refrigerating Mach. Co. v. Quinnipiac Brewing Co. [63 Conn. 551, 561, 29 A. 76 (1893)]. See Springfield-Dewitt Gardens, Inc. v. Wood, 143 Conn. 708, 713, 125 A.2d 488 (1956) . . . Permissive joinder of closely related occurrences is also allowed in order to serve the commonsense purposes of 'judicial economy, avoidance of multiplicity of litigation, and avoidance of piecemeal disposition of what is essentially one action . . .' Jackson v. Conland, 171 Conn. 161, 167, 368 A.2d 3 (1976)." (Footnote omitted.) Balog v. Shelton Restaurant, LLC, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV-04-0084313-S (August 2, 2004, Lager, J.) [37 Conn.L.Rptr. 659, ]; see also Financial Consulting, LLC v. Illinois Mutual Life Ins. Co., Superior Court, judicial district of New London, Docket No. CV-09-5013143, (October 28, 2010, Cosgrove, J.).
In McCart v. Shelton, the court affirmed the trial court's decision to grant the motion to strike for improper joinder. The court reasoned that " [t]he individual differences between the plaintiffs . . . go to the very heart of the issue . . . To answer [the] question, each of the plaintiffs must provide individual evidence. The plaintiffs' common facts are tangential, and the crucial facts differ for each plaintiff. There is no common question of fact or law." McCart v. Shelton, supra, 81 Conn.App. 62. Commonality and judicial economy are often linked, and joinder may be proper where claims will require the same evidence. See Financial Consulting, LLC v. Illinois Mutual Life Ins. Co., supra, Superior Court, Docket No. CV-09-5013143; Balog v. Shelton Restaurant, LLC, supra, Superior Court, Docket No. CV-04-0084313-S.
Moreover, " where plaintiffs allege the existence of a common scheme or plan on the part of the corporate entity, the plaintiffs satisfy the requirement that each plaintiff's right of relief arise out of the same transaction or series of transactions." Mascia v. Solhjoo, Superior Court, judicial district of Waterbury, Docket No. CV-05-4006397-S (February 22, 2006, Gallagher, J.) [40 Conn.L.Rptr. 784, ]. Essentially, " for joinder purposes, a series of transactions, and multiple questions of law and fact, have been found where allegations of a company-wide policy designed to inflict the particular injury have been made." (Internal quotation marks omitted.) Mascia v. Solhjoo, supra ; see also Hatfield v. Antonino Pontiac-Buick-GMC-Truck, Inc., Superior Court, judicial district of New London at Norwich, Docket No. 108084, (December 20, 1995, Teller, J.) (" there are common questions of law and fact intermingled in the plaintiffs' nearly identical encounters with the defendant, " permitting joinder of CUTPA claims even though not immediately related in time).
In the present case, the plaintiffs state causes of action relating to the defendants' legal representation. The plaintiffs retained the defendants on separate dates for representation in separate legal matters but argue that certain commonalities in the course of the representations weigh in favor of joinder. The plaintiffs allege that, in both the Epstein and Lynwood matters, the defendants failed to develop a strategic plan, entered into conflicts of interest, and engaged in excessive, unexplained, and unjustified billing. Further, the plaintiffs allege that the defendants withdrew from both matters within a three-day window. Even with a liberal approach, however, these allegations are not sufficient for permissive joinder.
As in McCart v. Shleton, " the individual differences between the plaintiffs . . . go to the very heart of the issue, " and each plaintiff would require separate evidence to prove their claims: McCart v. Shelton, supra, 81 Conn.App. 62. Smulley alleges that during the Epstein matter the defendants neglected her due to conflicts with the opposing party and his counsel, that the defendants engaged in a protracted campaign to delay the matter, and that she received demands for thousands of dollars in order to continue the course of representation. Costello, on the other hand, alleges representation of a different nature: in the Lynwood matter, the defendants failed to file a completed motion, submit defenses, forward documents to opposing counsel, and appear in court. Where Smulley's allegations sound alternatively in intentional and neglectful misconduct, Costello appears to allege a more general sort of incompetent representation. Although the plaintiffs both state claims that rely broadly on a theory of sub-par legal representation, the reasons for their respective dissatisfaction, and indeed the nature of the representations, diverge sharply.
Furthermore, the plaintiffs' arguments concerning the " connected occurrences" established by the pleadings do not demonstrate a common scheme on the part of the defendants. There are no express allegations that indicate the defendants had any policy in place that was instrumental to the plaintiffs' injuries, and, due to the differences in the facts alleged, no necessary implications can be drawn from the allegations to support finding such a plan.
Construing the second amended complaint in a manner most favorable to sustaining sufficiency, and in light of the liberal approach to permissive joinder, the plaintiffs nevertheless allege facts under which joinder would be improper. To the extent that the plaintiffs have perceived delay to this point in the litigation and would argue that fairness compels the court to maintain the action as it is presently, the court considers the impact on judicial economy, including the evidence required to prove each claim, and concludes that joinder would not promote the efficient resolution of this controversy.
The remainder of the plaintiffs' arguments may be addressed summarily. The argument concerning the plaintiffs' contract with the defendants is not properly before the court, as there are no allegations in the complaint concerning the contract, and the court may not look outside the pleadings in a motion to strike. Zirinsky v. Zirinsky, supra, 87 Conn.App. 268-69 n.9. Next, because a ruling on joinder is not a ruling on the merits, the doctrines of res judicata and collateral estoppel are not implicated by the present motion. See Inovejas v. Dufault, Superior Court, judicial district of Hartford-New Britain at New Britian, Docket No. CV-99-0496171-S (March 13, 2000, Graham, J.) [26 Conn.L.Rptr. 395, ] (judgment based upon motion to strike due to misjoinder is not res judicata in second action). Finally, the plaintiffs cite no law, and the court can find none, to support the contention that spouses are properly deemed necessary parties by virtue of their marital status; rather, the allegations concerning the plaintiffs' personal communications and intermingling finances do not establish that each spouse has a cognizable interest in the other's action, which settles the issue. " Under Connecticut law, [n]ecessary parties . . . are those [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it." (Internal quotation marks omitted.) Antonucci v. Antonucci, 164 Conn.App. 95, 117-18 n.16, 138 A.3d 297 (2016). Consequently, the plaintiffs' arguments cannot overcome the court's determination that the causes of action in the present case are not properly joined.
Although the court will not consider this argument, it is worth noting that allegations properly before the court concerning the existence of only one contract to retain the defendants would not be determinative. Compare Fairfield Lumber & Supply Co. v. Herman, 139 Conn. 141, 144, 90 A.2d 884 (1952) (permitting joinder of plaintiffs with separate, independent contracts) and Villegas v. Quality Roofing Co., Superior Court, judicial district of Fairfield, Docket No. CV-92-0294190 (May 17, 1993, Lager, J.) [9 Conn.L.Rptr. 112, ] (finding joinder inappropriate, noting " [w]hile each of the prospective plaintiffs is subject to the same employment contract as the named plaintiff, that does not end the inquiry but rather begins it").
CONCLUSION
For the foregoing reasons, the defendants' motion to strike the plaintiffs' second amended complaint, on the ground of misjoinder, is GRANTED.