Opinion
No. 01 018 3763 S
February 27, 2004
MEMORANDUM OF DECISION
Presently before the court is an amended motion for summary judgment (217.00) filed on December 12, 2003 by the defendant Modugno, Modugno Modugno, LLC., (the "Modugno Law Firm"). The claims of the Modugno Law Firm in that motion are more fully set forth below.
This case commenced with plaintiff's complaint dated April 11, 2001, alleging that the original defendants, Salvatore Giannitti ("Giannitti"), a shareholder in the plaintiff company, and the Modugno Law Firm which had previously represented Gianitti, violated General Statutes § 52-568(1) and (2) by commencing and prosecuting lawsuit against it without probable cause. The complaint alleges that on February 3, 1999, Giannitti, represented by the Modugno Law Firm, instituted a lawsuit against the plaintiff, seeking mandamus, attorneys fees and other relief. The basis for that complaint was that Giannitti had requested an inspection of plaintiff's corporate records in order to properly evaluate an offer made by plaintiff to purchase stock back from Giannitti. Giannitti alleged that he had only been allowed a partial inspection of the records and brought suit pursuant to General Statutes §§ 33-948 and 52-487 to compel plaintiff to allow a full inspection of its records.
Plaintiff claimed that the case was moot because its offer to purchase had expired. The court agreed and on May 18, 1999, the plaintiff's motion to dismiss Giannitti's suit on the grounds of mootness was granted by the court and judgment entered for the plaintiff. That judgment was affirmed by the Appellate Court on January 9, 2001. Giannitti v. Embalmers' Supply Co., 61 Conn. App. 904 (2001), cert. denied, 255 Conn. 941 (2001).
In this action the plaintiff alleges that the 1999 lawsuit and the subsequent appeal and petition for certification were commenced and prosecuted without probable cause in violation of General Statutes § 52-568. On February 25, 2003, following a settlement conference, the plaintiff settled his claim against Giannitti and withdrew the case against him. In connection with that settlement, the plaintiff executed a general release in favor of "SALVATORE GIANNITTI and KAREN GIANNITTI, as the RELEASEES, RELEASEES' agents servants employees, heirs, executors, administrators, successors and assigns." The release recited that "It is the specific intention of this document to resolve all claims that the Releasor, may have against the Releasees relating to the incidents, as more fully detailed in a suit between the parties in the Connecticut Superior Court for the Judicial District of Stamford/Norwalk bearing document number CV-010183763."
On October 30, 2003, the Modugno Law Firm, the remaining defendant, filed an amended answer (207.00) setting forth a fourth special defense alleging that the release signed by plaintiff served to release the Modugno Law Firm as an agent of Giannitti.
On December 12, 2003, the Modugno Law Firm filed an amended motion for summary judgment (217.00) claiming that the case had been dismissed by the court (Adams, J.) on October 21, 2002 on the ground of lack of subject matter jurisdiction. The motion also claimed that, as a matter of law, the February 25, 2003 general release served to release the Modugno Law Firm from liability along with their former client, Giannitti.
In opposition to that motion the plaintiff submitted its own motion for summary judgment (218.00) with respect to the Modugno Law Firm's fourth special defense, affidavits (219.00 and 221.00) and a memorandum of law supporting its motion for summary judgment and opposing that of the Modugno Law Firm (220.00).
Subject Matter Jurisdiction
It is axiomatic that if a court lacks subject matter jurisdiction over an action, that action must be dismissed. The Modugno Law Firm first moved for dismissal on June 14, 2001 claiming mootness and lack of subject matter jurisdiction (106.00). In a decision dated February 7, 2002, the court (Adams, J.) denied the motion stating: "The defendants have not raised a viable challenge to jurisdiction here . . . The motion to dismiss is denied."
On September 4, 2002, the Modugno Law Firm again moved for dismissal claiming lack of subject matter jurisdiction because of an alleged defect in the pleadings (159.00). Apparently the court agreed that the pleadings, as of that date, were in some manner defective and on October 21, 2002 the court (Adams, J.) entered an order on that motion stating "Granted to extent will file amended pleading incl. substantive counts + subst. relief w/in 10 days."
On March 11, 2003, the Modugno Law Firm again moved to dismiss claiming that Judge Adams' order of October 21, 2002 constituted a final judgment of dismissal for lack of subject matter jurisdiction (175.00). That motion was denied by the court (Lewis, J.T.R.) on August 27, 2003. In his memorandum of decision Judge Lewis stated: "The claim that Judge Adams dismissed this action is erroneous." Judge Lewis pointed out that Judge Adams had made it clear that he had not found a lack of subject matter jurisdiction, only a lack of "a complete complaint with allegations of fact and prayers for relief in one document." Judge Lewis also pointed out that in response to defendant's request to "articulate and clarify" why he permitted the plaintiff to file and amended complaint, Judge Adams wrote "Court will adhere to previous decisions; defendant to file answer and case is not dismissed." (Emphasis supplied.)
Despite Judge Lewis' decision the Modugno Law Firm filed an answer on September 9, 2003 (193.00) which included a first special defense claiming that the court lacked subject matter jurisdiction because "(o)n October 21, 2002, the Court (Adams, J.) granted the Defendant's Modugno, Modugno Modugno, LLC, motion to dismiss for lack of subject matter jurisdiction dated September 4, 2002." On September 24, 2003 the plaintiff filed a motion to strike all special defenses, including lack of subject matter jurisdiction, set forth in the September 9, 2003 answer filed by the Modugno Law Firm (197.00). That motion was granted by the court (Radcliff, J.).
Under these circumstances, a motion for summary judgment raising the same claim of lack of subject matter jurisdiction is without merit and must be denied. The fact that four judges have now been required to consider this same specious claim can not be allowed to pass without comment. Having had this claim repeatedly and explicitly rejected, it is nearly inconceivable to this court that a member of the bar of this state would file a motion for summary judgment alleging that this case had already been dismissed by Judge Adams. In defending themselves the Modugno Law Firm is acting pro se. The firm and its members are nevertheless subject to the Rules of Professional Conduct and are hereby expressly cautioned that no further frivolous pleadings in this case will be tolerated by the court.
See Rule 3.1 regarding an attorneys responsibilities with respect to the raising of frivolous issues. See Burton v. Mottolese, 267 Conn. 1, 536 A.2d 995 (2003), with regard to a trial court's authority to impose professional discipline, up to and including disbarment, for violations of the Rules of Professional Conduct.
General Release
The Modugno Law Firm also claims that the general release signed by plaintiff in favor of their former client, Salvatore Giannitti, operates as a general release of them. In support of this claim the Modugno Law Firm cites Cunha v. Colon, 260 Conn. 15, 792 A.2d 832 (2002), in which the court held "where the liability of a principal for a tort committed by his agent is predicated solely upon the doctrine of respondeat superior, a valid release of either operates to release the other." This claim must fail. The liability of the Modugno Law Firm, if any, to plaintiff is not based on the doctrine of respondeat superior. The plaintiff's claim is that the Modugno Law Firm acting in concert with Giannitti wrongfully maintained and prosecuted the 1999 action against plaintiff without probable cause in violation of General Statutes § 52-568.
The Modugno Law Firm further argues that by the plain language of the release, it is entitled to its benefits as "agents" of Giannitti in connection with the 1999 litigation. The plaintiff argues, unpersuasively, that the word "agents" in the release must be construed to include only the attorneys who acted for the Giannittis in the present litigation and not the Modugno Law Firm. More to the point, in opposition to the motion for summary judgment the plaintiff filed affidavits regarding the circumstances under which the release was signed and the intention of the parties with respect to the parties being released. Those affidavits not only show that the Modugno Law Firm was not intended to be included in the release, but also that members of that firm were present when the release was discussed in chambers before Judge Mintz and consequently were aware of that fact. Under the rule of Sims v. Honda Motor Co., 225 Conn. 411 (1993), such extrinsic evidence is admissible to show the intentions of the parties to a release, even if the terms of the release are unambiguous.
The Modugno Law Firm filed a motion to strike the affidavits (224.00) on the grounds that they constituted impermissible parole evidence of intent. As noted above, such evidence is now admissible to show the intent of a release. Accordingly, the motion to strike is denied.
It is obvious that a properly drafted release could have avoided the Modugno Law Firm's claim. A careful draftsman would have included in the document a statement that expressly excluded the Modugno Law Firm from the benefits of the release.
The court concludes that at a minimum there are material issues of fact regarding the fourth special defense of the Modugno Law Firm. Accordingly, the amended motion for summary judgment filed by the Modugno Law Firm is denied in all respects.
The plaintiff's motion for summary judgment (218.00) was not before the court for determination. Accordingly, to court is not in a position to determine that the plaintiff's affidavits with respect to intent are uncontroverted by the Modugno Law Firm.
David R. Tobin, Judge