Opinion
No. CV09-4030012
December 2, 2009
MEMORANDUM OF DECISION MOTION TO STRIKE RE ATTORNEY CARMINE PERRI'S APPEARANCE
In October 2007, an application for the appointment of an involuntary conservator for Jessie Lee Sullivan was filed in the Bridgeport Court of Probate. On October 16, 2007, pursuant to General Statutes § 45a-649a(b), Probate Judge Paul Ganim appointed Attorney Carmine Perri to represent Sullivan in that conservatorship proceeding. On December 10, 2007, the Court of Probate held a hearing on the conservatorship application. At that time, Perri informed the court that Sullivan did not object to the appointment of James Lillis as her conservator. Since December 2, 2008, Ms. Sullivan has been confined to the Northbridge Health Care Center in Bridgeport.
On August 24, 2009, a petition for a writ of habeas corpus was filed by Sullivan's next friend, her niece, Darlene Parks. The primary purpose of the habeas corpus action is to pursue Sullivan's long stated wish to return to her private home at 360 Anton Drive in Bridgeport. The petition was filed in behalf of Sullivan and her next friend, Parks by Connecticut Legal Services, Inc. The petitioner alleges that Sullivan has retained Connecticut Legal Services, Inc., to prosecute this action on her behalf. Sullivan's court-appointed attorney in the underlying conservatorship proceeding in the Bridgeport Court of Probate, Carmine Perri, has also filed an appearance for Sullivan in the instant habeas corpus matter. Perri, filed a motion to dismiss, arguing that he represents Sullivan, and that Sullivan did not express any wish to him that she wanted to file a petition for a writ of habeas corpus. Connecticut Legal Services and Sullivan, through her next friend Parks, argue that Perri's probate court appointment does not extend to this matter. The petitioner by her next friend, has moved to strike Perri's appearance arguing the petitioner, Sullivan, has exercised her absolute statutory right to choose her own counsel in this habeas proceeding.
I Standard of Law: Motion to Strike
"[T]he proper manner by which to challenge [an] improper appearance is to file a motion for default for failure to appear . . ." R.K. Donnelley Sons, Company dba v. Grey Castle Press, Inc., Superior Court, Judicial District of Litchfield, Docket No. 0059244 (June 18, 1992, Pickett, J.), (denying plaintiff's motion to strike individual pro se's improper appearance on behalf of defendant corporation); Emtec Engineering, Inc. v. Administrator, Superior Court, judicial district of Ansonia-Milford, Docket No. 90 024168 (February 21, 1991, Fuller, J.), [ 3 Conn. L. Rptr. 280] (granting defendant's motion to strike pro se appearance filed on behalf of plaintiff, a corporation, where prior judge had denied defendant's motion for default for failure to appear and stated that the proper motion was a motion to strike the appearance). See also, Triton Associates v. Six New Corporation, 14 Conn.App. 172, 175 (1988) (holding that trial court properly defaulted the defendant for failure to appear, where a pro se appearance had been filed on behalf of the defendant, a corporation)." SNET Info. Serv. v. Photopros Studio, LLC, Superior Court, judicial district of New Haven at New Haven, No. CV07-6001104S (Mar. 19, 2008, Bellis, J.), 45 Conn. L. Rptr. 209.
"Nonetheless, trial courts have routinely entertained motions to strike improper appearances. E.G Kuiken Brothers Co., Inc. v. Coastal Building, LLC, Superior Court, judicial district of Ansonia-Milford, Docket No. 040084114 (March 12, 2004, Bear, J.) [ 36 Conn. L. Rptr. 668] (granting plaintiff's motion to strike non-lawyer's appearance on behalf of defendant limited liability company); Valiant Insurance Co. v. Nurse Network LLC, Superior Court, judicial district of Hartford-New Britain, Docket No. 980578083 (September 25, 1998, Hennessey, J.) [ 22 Conn. L. Rptr. 685] (granting plaintiff's motion to strike non-lawyer's appearance on behalf of defendant limited liability company)." Id.
"The court recognizes that the motion is not a motion to strike in the true sense, but rather, a motion seeking to have the appearance stricken from the file, much as parties move to strike, for example, an improperly filed jury claim or trial list claim, rather than testing the legal sufficiency of a claim. (Internal quotation marks omitted) Id., n. 2. In this matter, Perri has not objected to the petitioner's use of the motion to strike to challenge the validity of his appearance. Therefore, the court will entertain the motion in the form presented.
II
Discussion
The court concedes that this matter presents an unusual issue in that both Perri and Connecticut Legal Services claim to represent the petitioner. Both claim they have the petitioner's best interests in mind by either advocating for the petition or against it. The court has recently had the opportunity to listen to testimony of Jessie Lee Sullivan, as she was examined and cross-examined by various parties in this matter during a hearing conducted on a companion motion regarding a lis pendens placed on Sullivan's property located at 360 Anton Drive in Bridgeport. As a result of that hearing the court was unable to discern her wishes as to legal representation, as she demonstrated an unfamiliarity with the legal action and evidenced confusion as to the identity of both her court-appointed attorney, Perri and Attorney Moore of Connecticut Legal Services. As a result, the court is left to determine Sullivan's representation in this matter by reviewing the law as it applies to the duration of the duties of Perri who was appointed by the probate court for the conservatorship proceedings and General Statutes § 45a-705a, which governs the writ of habeas corpus in this proceeding.
General Statutes § 45a-649a(c) states that in addition to consulting with conserved persons concerning their appeal rights under General Statutes § 45a-186, an attorney appointed pursuant to § 45a-649a "shall represent the respondent or conserved person in proceedings under sections §§ 45a-644 to 45a-663, inclusive." Perri's representation of Sullivan derives solely from his appointment by Probate Judge Ganim pursuant to § 45a-649a. He does not claim to have been independently retained by Ms. Sullivan to represent her beyond the scope of that statute.
General Statutes § 45a-649a states in relevant parts as follows:
(a) A respondent, as defined in section 45a-644, or a conserved person, as defined in section 45a-644, who s subject to proceedings subsequent to the appointment of a conservator pursuant to an application for involuntary representation shall have the right to be represented by an attorney of the respondent's or conserved person's choosing at the expense of the respondent or conserved person or, if the respondent or conserved person is indigent, within the payment guidelines of the Court of Probate.
(b) If the Court of Probate finds the respondent or conserved person is indigent or otherwise unable to pay for an attorney, the court shall appoint an attorney for the respondent or conserved person . . . The court shall appoint an attorney from a panel of attorneys admitted to practice in this state provided by the Probate Court Administrator in accordance with regulations issued under section 45a-77.
(c) An attorney appointed pursuant to this section shall represent the respondent or conserved person in proceedings under sections 45a-644 to 45a-663, inclusive, and shall consult with the conserved person regarding bringing an appeal to the Superior Court under section 45a-186 . . .
(d) Nothing in this section shall impair, limit or diminish the right of a respondent or conserved person to replace the attorney for such respondent or conserved person with a different attorney whom such respondent or conserved person chooses in accordance with this section . . .
Judge Ganim appointed Perri to represent Sullivan in the October 2007, conservatorship proceeding pursuant to General Statutes § 45a-649a(b) which is included in Chapter 802h (Protected Persons and Their Property) of the General Statutes. General Statutes § 45a-650(m) provides in pertinent part:
Nothing in [Chapter 802h] shall impair, limit or diminish a conserved person's right to retain an attorney to represent such person or to seek redress of grievances in any court or administrative agency, including proceedings in the nature of habeas corpus arising out of any limitations imposed on the conserved person by court action.
Id.
Furthermore, paragraph (d) of Section 45a-649a itself states:
Nothing in this section shall impair, limit or diminish the right of a respondent or conserved person to replace the attorney for such respondent or conserved person with a different attorney.
Id.
A petition for a writ of habeas corpus brought pursuant to § 45a-705a, by the express terms of subsection (a), is not foreclosed because the conserved party declined to prosecute an appeal pursuant to § 45a-186. The fact that Sullivan previously instructed Perri not to appeal the appointment of a conservator has no bearing on her right to file this petition for a writ of habeas corpus. Section 45a-705a(a) provides that a person "is entitled to the benefit of the writ of habeas corpus without having previously exhausted all other remedies including, but not limited to, the right to appeal the order of guardianship or involuntary representation." General Statutes § 45a-705a(a).
General Statutes § 45a-705a(a) reads as follows:
(a) An individual subject to a guardianship or involuntary representation under this chapter may apply for and is entitled to the benefit of the writ of habeas corpus without having previously exhausted other available remedies including, but not limited to, the right to appeal the order of guardianship or involuntary representation. The question of the legality of such guardianship or involuntary representation shall be determined by the court or judge issuing such writ."
Accordingly, Perri is not authorized by statute or the express consent of the petitioner to appear for Sullivan in this case as her attorney. His representation of Sullivan as an attorney appointed by the probate court is limited to in proceedings under sections §§ 45a-644 to 45a-663, inclusive. He has no inherent authority to file pleadings in this case in behalf of Sullivan without her express consent of Sullivan or the consent of Sullivan's next friend, Darlene Parks. This ruling is consistent with the findings and orders made by the court in denying a motion to dismiss the petition which was filed by Perri, purportedly in his capacity as the court-appointed attorney for Sullivan. See Sullivan v. Ganim et al., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV09-4030012 (November 30, 2009, Arnold, J.). The motion to strike the appearance of Attorney Perri in this action for a writ of habeas corpus is hereby granted. Perri's appearance as counsel for Sullivan is hereby ordered stricken.
Probate Judge Ganim was initially named as a respondent to the petition, along with Conservator James Lillis. The court has dismissed the action as to Ganim in a second memorandum of decision dated November 30, 2009, in response to a motion to dismiss filed by Ganim. See. Sullivan v. Ganim et al., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV09-4030012 (November 30, 2009, Arnold, J.).