Opinion
No. CV06 401 47 76 S
January 22, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#142)
FACTUAL BACKGROUND
The plaintiff, Old Financial Corporation, filed its original complaint for the foreclosure of certain real property on January 31, 2006 against the following defendants: David A. Miller, Dan Perkins Chevrolet-Geo, Inc., Haynes Materials Co. and O G Industries, Inc. The court granted a motion to cite in "Paul Miller, Trustee," as an additional party on May 22, 2006, and the plaintiff subsequently filed an amended complaint on February 8, 2007. The plaintiff alleges the following facts in its amended complaint: On June 17, 1998, David A. Miller executed and delivered a note for a loan of $75,000.00 to Novastar Mortgage, Inc. (Novastar), secured by a mortgage on the property at 1650 Reservoir Avenue in Bridgeport, Connecticut (the property). The mortgage was recorded on June 18, 1998. On September 1, 1999, the parties signed a mortgage deed modification agreement, which was recorded on May 26, 2005. The mortgage was subsequently assigned to the plaintiff.
Dan Perkins Chevrolet-Geo, Inc., Haynes Materials Co., O G Industries, Inc. And Paul Miller are parties claiming an interest in the property at issue in this action.
Other assignments of the mortgage included: from Novastar to EMC Mortgage Corporation (EMC) on October 31, 2000, recorded February 12, 2001; from EMC to Investors One Corporation (Investors) on October 30, 2001, recorded October 9, 2003; from NAMCO Asset Management, Inc. (NAMCO) POA for Investors to The Dime Savings Bank of New York, FSB (Dime) on November 30, 2001, recorded October 9, 2003; and from Dime to Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for Ingomar, LP on November 30, 2001, recorded October 9, 2003.
The plaintiff further alleges that the mortgage note is currently in default and the plaintiff has elected to accelerate the balance due on the note and foreclose the mortgage. The plaintiff provided the defendants with written notice of the default and recorded a lis pendens for the property on the land records of Bridgeport. Paul Miller is the owner of the property's equity of redemption, which he obtained by quitclaim deed of March 22, 2006, after the plaintiff filed this action. Paul Miller was originally represented by counsel, but has proceeded pro se after filing a pro se appearance with the court on February 14, 2008. On November 10, 2008, Paul Miller filed a counterclaim to quiet title and a motion to dismiss the plaintiff's claims on the ground that the mortgage modification was recorded out of the chain of title. Paul Miller subsequently filed a motion for default on his counterclaim, which was granted on January 2, 2009. On February 27, 2009, the plaintiff filed an answer to Paul Miller's counterclaim and the court granted the plaintiff's motion to open the default judgment on March 2, 2009.
Paul Miller alleged that the plaintiff could not foreclose on the property because it was not covered by the mortgage and that the property here is actually the parcel at 1644 Reservoir Avenue. In support of his claim, Paul Miller cited a court judgment entered to this effect on August 28, 2006.
The plaintiff filed a motion to strike the appearance and subsequent pleadings of Paul Miller and an accompanying memorandum of law on September 14, 2009. The motion was filed on the ground that Paul Miller is appearing pro se in a representative capacity, which constitutes the unauthorized practice of law. In response, Paul Miller filed a memorandum of law in opposition to the motion to strike on September 23, 2009.
LEGAL DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff . . . If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
The plaintiff moves to strike Paul Millers's appearance and pleadings, including his counterclaim and motion to dismiss, as he has been engaging in the unauthorized practice of law. In support, the plaintiff argues that Paul Miller, as trustee, is appearing in a representative capacity in violation of General Statutes § 51-88 and Practice Book § 3-2(a). Paul Miller counters that the court should deny the motion because he has "an interest in th[e] property [at] 1650 Reservoir Avenue," "[t]he court granted [the] motion to cite [him] in [as an] additional party," "[t]he plaintiff never filed a notice of appeal [of] this decision" and he has "filed no fewer than 10 additional pleadings since the motion to cite in was granted." He further asserts that the use of the word "trustee" does not have any affect on the "transfer or assigns [of] real estate or any interest therein" and "[n]o person is liable for the claim of any undisclosed beneficiary or principal." Lastly, he maintains that "[t]here is no basis for the motion to strike, the motion does not comply with the practice book, and attempts to challenge the jurisdictional authority of the Court, by circumventing a decision of a Superior Court Judge, using a lateral sitting Superior Court Judge. The Court simply does not have the jurisdiction to hear a motion designed to countermand and reverse the decisions of a lateral Court."
As a preliminary matter, the court must determine whether the instant motion to strike is properly before this court. "[T]he proper manner by which to challenge [an] improper appearance is to file a motion for default for failure to appear . . ." R.R. Donnelley Sons Co. d/b/a v. Grey Castle Press, Inc., Superior Court, judicial district of Litchfield, Docket No. 0059244 (June 18, 1992, Pickett, J.) [ 6 Conn. L. Rptr. 578], citing Triton Associates v. Six New Corporation, 14 Conn.App. 172, 540 A.2d 95 (1988). "[A] Motion to Strike [a pro se appearance] does not fall within Connecticut Practice Book Sections [10-39] (a)(1)(2)(3)(4) or (5) . . ." Franklin Sports, Inc. v. Seems, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 990066491 (July 20, 1999, Arnold, J). "[T]rial courts have routinely entertained motions to strike improper appearances . . . [Where] no objection has been made to the use of a motion to strike as a vehicle to test the sufficiency of the appearance . . . the court [may] entertain the motion." SNET Information Services, Inc. v. Photopros Studio, LLC, Superior Court, judicial district of New Haven, Docket No. CV 07 6001104 (March 19, 2008, Bellis, J.) ( 45 Conn L. Rptr. 209).
Practice Book § 10-6 provides: "The order of pleadings shall be as follows . . . (4) The defendant's motion to strike the complaint. (5) The defendant's answer (including special defenses) to the complaint." "[T]he filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section." Practice Book § 10-7.
In the present case, the plaintiff has brought a motion to strike Paul Miller's appearance and pleadings as Paul Miller, Trustee. Since a pro se appearance does not provide a basis upon which a motion to strike may be brought under Practice Book § 10-39, this is the improper procedural vehicle by which to challenge an improper appearance. Nor may this court entertain this motion to strike an improper appearance, as courts have routinely done, because Paul Miller has specifically objected to the use of the motion to strike on the ground that it does not comply with the requirements of the Practice Book.
In addition, the order of pleadings, discussed in Practice Book § 10-6, provides that a motion to strike shall be filed prior to the answer to the complaint. In the present case, Paul Miller filed a counterclaim on November 10, 2008. The plaintiff filed an answer to the counterclaim on February 27, 2009. Then, on September 14, 2009, the plaintiff filed the instant motion to strike, inter alia, Paul Miller's counterclaim. Once a party files an answer, it waives the right to file any of the preceding pleadings in the order given in § 10-6, unless the judicial authority decides otherwise. By filing an answer to Paul Miller's counterclaim, the plaintiff waived its right to file a motion to strike.
Next, the court must consider the plaintiff's allegations that Paul Miller has engaged in the unauthorized practice of law. Although the plaintiff's underlying motion to strike must be denied, Practice Book § 2-44 provides that "[t]he superior court may . . . for just cause, punish or restrain any person engaged in the unauthorized practice of law." See also Statewide Grievance Committee v. Burton, Superior Court, judicial district of Danbury, Docket No. CV 03 0351055 (December 17, 2007, Shaban, J.) ( 44 Conn. L. Rptr. 615). Likewise, Connecticut courts have, sua sponte, questioned whether a party before the court is engaging in the unauthorized practice of law. See In Re Darlene C., 247 Conn. 1, 717 A.2d 1242 (1998) (reversing on other grounds a lower court's sua sponte finding that one party before it was engaging in the unauthorized practice of law); Ellis v. Cohen, 118 Conn.App. 211, 213 (2009) (questioning, sua sponte, whether a nonlawyer's attempted representation of an estate constituted unauthorized practice of law). Accordingly, the court will examine whether Paul Miller has engaged in the unauthorized practice of law.
Section 51-88 provides in relevant part: "(a) A person who has not been admitted as an attorney under the provisions of section 51-80 shall not: (1) Practice Law or appear as an attorney-at-law for another, in any court of record in this state . . . Any person who violates any provision of this section shall be deemed in contempt of court, and the Superior Court shall have jurisdiction in equity . . . upon its own motion to restrain such violation . . . (d) The provisions of this section shall not be construed as prohibiting . . . (2) any person from practicing law or pleading at the bar of any court of this state in his own cause . . ."
"[A] self-represented party . . . cannot represent the interests of another party. A pro se party may not appear on behalf of another pro se party . . . To do so would be to engage in the unauthorized practice of law. See General Statutes § 51-88." (Citation omitted, internal quotation marks omitted.) Zenon v. J.A. Mossy, 114 Conn.App. 734, 734 n. 1, 970 A.2d 814 (2009). "[B]ecause pro se means to appear for one's self, a person may not appear on another person's behalf in the other's cause." (Emphasis in original) Lowe v. Shelton, 83 Conn.App. 750, 756, 851 A.2d 1183 (2004). "The authorization to appear pro se is limited to representing one's own cause, and does not permit individuals to appear pro se in a representative capacity." Expressway Associates II v. Friendly Ice Cream, 34 Conn.App. 543, 546, 642 A.2d 62, cert. denied, 230 Conn. 915 (1994).
"[A fiduciary] must remain loyal to [those whom they owe a duty] and must not act out of self-interest or for the interests of parties other than [those owed the fiduciary duty] . . . Because the duties of the defendant fiduciary include representing the interests of [others] . . . the defendant is not representing her interests alone . . . Therefore, in light of the provisions of General Statutes § 51-88, the defendant's appearance . . . constitutes the unauthorized practice of law and is impermissible." (Emphasis in original.) Battalino v. Van Patten, Superior Court, judicial district of New London, Docket No. CV 04 400087 (October 7, 2008, Peck, J.) (discussing the duty of an executrix to the heirs, distributees, and creditors of the estate).
When the court originally granted the motion to cite in Paul Miller, he was represented by counsel and identified himself as a "trustee," a title that entails certain duties to another party or parties. "Paul Miller, Trustee" subsequently filed an appearance to represent himself before the court pro se, which is only permissible for individuals representing solely their own interests. By attempting to represent the interests of another as trustee, Paul Miller violated the requirements of pro se representation and is engaging in the unauthorized practice of law. Contrary to Paul Miller's arguments, the court's initial acceptance of him as a party has no bearing on whether he engaged in the unauthorized practice of law after proceeding pro se. Likewise, while pleadings filed when counsel represented Paul Miller are proper, pleadings filed by an individual engaged in the unauthorized practice of law are not proper merely because the court is unaware of the illegitimate status of the filing party. Finally, Paul Miller's argument that he holds an interest in the property in dispute does nothing to refute that he is representing the interest of a party other than himself as a trustee. As such, the court may act in its jurisdiction in equity, upon its own motion, to "punish or restrain" Paul Miller from practicing law without a license. Accordingly, the court will issue default for failure to appear, which will render all pro se pleadings filed by "Paul Miller, Trustee," improperly before the court. The court will grant its own motion to default "Paul Miller, Trustee" for failure to appear.
"[T]he conduct of litigation by a nonlawyer creates unusual burdens not only for the party he represents but as well for his adversaries and the court. The lay litigant frequently brings pleadings that are awkwardly drafted, motions that are inarticulately presented, proceedings that are needlessly multiplicative. In addition to lacking the professional skills of a lawyer, the lay litigant lacks many of the attorney's ethical responsibilities, e.g., to avoid litigating unfounded or vexatious claims." (Internal quotation marks omitted.) Expressway Associates II v. Friendly Ice Cream, supra, 34 Conn.App. 549.
Paul Miller is no stranger to this type of proceeding. It has been explained to him that "[an individual] is not a party to [an] action [if] he has not filed a proper appearance . . . Practice Book § 3-2(a) provides . . . `After the writ has been filed the attorney for any party to an action, or any party himself or herself, may enter his or her appearance in writing . . .' Pro se appearances . . . can only he filed by a natural person for himself or herself. They cannot be filed by a person for a spouse, a corporation or for a trust. Any pleadings filed by `Paul Miller, Trustee, pro se,' are void and of no effect." People's Bank v. Bouffard, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV054008908 (August 19, 2005, Doherty, J.) [ 39 Conn. L. Rptr. 832].
In summary, the plaintiff's motion to strike the appearance and subsequent pleadings of "Paul Miller, Trustee" is denied. However, the court will sua sponte grant a motion for default for failure to appear which renders all pleadings filed by "Paul Miller, Trustee" improperly before the court.
So ordered.