Cox v. Burdick

• Decision Date: 24 October 2006
• Docket Number: (AC 26880)
• Citation: 907 A.2d 1282,98 Conn. App. 167
• Court: Connecticut Court of Appeals
• Parties: PATRICK COX v. PATRICIA BURDICK

907 A.2d 1282

98 Conn. App. 167

PATRICK COX v.PATRICIA BURDICK

(AC 26880)

Appellate Court of Connecticut.

Argued April 24, 2006.

Officially released October 24, 2006.

Gruendel, Rogers and Peters, Js.

Conrad Ost Seifert, with whom was Patricia Burdick,pro se, for the appellant(defendant).

Randall A. Ortega, with whom was Matthew G. Berger, for the appellee(plaintiff).

Opinion

GRUENDEL, J.

This case arises from a stipulated judgment between the parties requiring the defendant, Patricia Burdick, to sell her house to the plaintiff, Patrick Cox.The defendant now appeals from the denial by the trial court of her motion to open the stipulated judgment.On appeal, the defendant claims that the court improperly (1) ordered her attorney, Theodore M. Ladwig, to divulge confidential information protected by the attorney-client privilege and (2) failed to find that she was under duress at the time the stipulated judgment was rendered.We affirm the judgment of the trial court.

On February 1, 2005, the parties entered into a stipulated judgment to resolve a lawsuit in which the plaintiff sued the defendant to obtain specific performance of the conveyance of real property in accordance with the terms of a contract.¹Both parties were present in court and agreed to the stipulation, which was signed by the parties and their attorneys, including Ladwig.The stipulation required the defendant to sell the subject property to the plaintiff for $145,000 and specified the details for the transfer of the property.

On March 1, 2005, the defendant, without the assistance of Ladwig, filed a motion to open the judgment, claiming that "I was not in agreement my lawyer push me," and "I been diagnosed with post traumatic syndrome disorder."The following day, Ladwig filed a motion to withdraw as counsel because of an irreparable deterioration of the attorney-client relationship.The motion to withdraw was granted on April 12, 2005.On March 15, 2005, the plaintiff filed a motion to enforce the stipulated judgment, as well as an objection to the defendant's motion to open the judgment.

A hearing was scheduled for June 30, 2005, on the defendant's motion to open the judgment.At the hearing, the defendant offered her testimony, as well as that of her social worker, Sherilyn Cartagena.The plaintiff offered only the testimony of Ladwig.On August 8, 2005, the court denied the defendant's motion to open the judgment, finding that she"failed to prove her claims of duress or lack of mental capacity at the hearing."This appeal followed.Additional facts will be set forth as necessary.

I

The defendant first claims that at the hearing on the motion to open the stipulated judgment, the court improperly ordered Ladwig to divulge confidential information protected by the attorney-client privilege.We are not persuaded.

The following additional facts are relevant to the defendant's claim.At the June 30, 2005 hearing, the plaintiff called Ladwig as his sole witness.Early in the examination, during foundation questions not specifically related to this case, Ladwig invoked the attorney-client privilege.The court ordered him to answer.Later, when asked about his impressions of the defendant's mental condition, Ladwig again invoked the privilege, which the court also overruled.When asked whether he had changed his opinion as to the defendant's mental condition in light of her physician's opinions, Ladwig again invoked the privilege.This time, the court stated: "In this case, the privilege doesn't apply.This whole issue is your relationship with this witness."The court further informed Ladwig that it had made its ruling and that he could pursue it on appeal if he desired.Thereafter, Ladwig answered the remainder of the plaintiff's questions without further invoking of the privilege.

We begin by stating our standard of review."Whether the trial court properly concluded that there is an exception to the attorney-client privilege . . . and, if so, whether it properly delineated the scope and contours of such an exception, are questions of law.SeeOlson v. Accessory Controls & Equipment Corp.,254 Conn. 145, 168-69, 757 A.2d 14(2000)(whether court should recognize civil fraud exception to attorney-client privilege and limitations on exception are questions of law).Accordingly, our review of these issues is plenary."Hutchinson v. Farm Family Casualty Ins. Co.,273 Conn. 33, 38, 867 A.2d 1(2005).

"In Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co.,249 Conn. 36, 52, 730 A.2d 51(1999), the Supreme Court recognized that the attorney-client privilege was created to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observation of law and administration of justice. . . .Exceptions to the attorney-client privilege should be made only when the reason for disclosure outweighs the potential chilling of essential communications.It is obvious that professional assistance would be of little or no avail to the client, unless his legal adviser were put in possession of all the facts relating to the subject matter of inquiry or litigation, which, in the indulgence of the fullest confidence, the client could communicate.And it is equally obvious that there would be an end to all confidence between the client and the attorney, if the latter was at liberty or compellable to disclose the facts of which he had thus obtained possession. . . .

"The Supreme Court also recognized in Metropolitan Life Ins. Co. that the attorney-client privilege implicitly is waived when the holder of the privilege has placed the privileged communications in issue. . . .Because of the important public policy considerations that necessitated the creation of the attorney-client privilege however, the at issue, or implied waiver, exception is invoked only when the contents of the legal advice is integral to the outcome of the legal claims of the action. . . .Such is the case when a party specifically pleads reliance on an attorney's advice as an element of a claim or defense, voluntarily testifies regarding portions of the attorney-client communication, or specifically places at issue, in some other manner, the attorney-client relationship.In those instances the party has waived the right to confidentiality by placing the content of the attorney's advice directly at issue because the issue cannot be determined without an examination of that advice."(Citation omitted; emphasis added; internal quotation marks omitted.)Hutchinson v. Farm Family Casualty Ins. Co.,supra, 273 Conn. 38-39.

The defendant first argues that the court improperly determined that the attorney-client privilege was waived and ordered Ladwig to testify over his assertion of the privilege.Even if we assume arguendo that the substance of Ladwig's testimony was covered by the privilege,²we look to whether the defendant waived the privilege.The very nature of the defendant's claim is that Ladwig behaved inappropriately and gave her bad advice with regard to the sale of her home.To that end, the defendant testified that Ladwig "manipulated me and conversed me and told me there was no other way.""If the information is actually required for a truthful resolution of the issue on which the party has raised . . . the party must either waive the attorney-client privilege as to that information or it should be prevented from using the privileged information to establish the elements of the case."(Internal quotation marks omitted.)Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co.,supra, 249 Conn. 53.The defendant attempts to substantiate her claim with testimony that Ladwig did something wrong, yet asserts the attorney-client privilege to deny the plaintiff the opportunity to ascertain the credibility of her account or to present contrary evidence.Because the defendant's claim cannot be resolved without examining her relationship with Ladwig, the court properly determined that the attorney-client privilege had been waived.³

In the alternative, the defendant argues that Ladwig's testimony is not integral to her claims on appeal,⁴ and, consequently, even if she waived the privilege, the testimony should not have been permitted.In making this argument, the defendant focuses solely on the claim that "her functioning capacity was seriously diminished" at the time she signed the stipulated judgment, and, thus, she did so under duress.The record, however, reveals that the defendant also claimed in her motion to open the judgment that Ladwig coerced her into signing the stipulated judgment.⁵Additionally, the defendant repeatedly testified at the June 30, 2005 hearing that she believed that Ladwig had "manipulated" her into signing the stipulated judgment.We conclude, therefore, that the defendant's coercion claim was alive at the time Ladwig testified and that the court properly allowed testimony relevant to it.⁶

Additionally, the defendant argues that even if she waived the attorney-client privilege, the scope of Ladwig's testimony exceeded that waiver.Specifically, she argues that the content of the advice that Ladwig gave her as well as his impressions of her were not relevant to her coercion claim."The trial court has broad discretion in determining the relevance of the evidence."Sullivan v. Metro-North Commuter Railroad Co.,96 Conn. App. 741, 749, 901 A.2d 1258(2006).The court acted within its discretion to determine that testimony on the content of the advice given to the defendant by Ladwig was necessary for the court to examine whether his conduct was coercive.Similarly, the court acted within its discretion to determine that Ladwig's understanding of the defendant's mental state was relevant to whether he used that knowledge to coerce her.Accordingly, the scope of Ladwig's testimony did not exceed the waiver.⁷

II

The defendant next claims that the court improperly found that she was...