Fattibene v. Kealey

• Decision Date: 16 May 1989
• Docket Number: No. 6759,6759
• Citation: 558 A.2d 677,18 Conn.App. 344
• Parties: Michael P. FATTIBENE v. Dennis J. KEALEY.
• Court: Connecticut Court of Appeals

Page 677

558 A.2d 677

18 Conn.App. 344

Michael P. FATTIBENE v. Dennis J. KEALEY.

No. 6759.

Appellate Court of Connecticut.

Argued Dec. 20, 1988.

Decided May 16, 1989.

Arthur T. Fattibene, Southport, for appellant (plaintiff).

Jeremy A. Mellitz, Fairfield, for appellee (defendant).

Before BORDEN, DALY and EDWARD Y. O'CONNELL, JJ.

BORDEN, Judge.

The principal issues in this appeal involve the circumstances under which the trial court, in the exercise of its inherent authority, may impose sanctions of attorney's fees for a course of bad faith pleading. This case is a sequel to our decision in Fattibene v. Kealey, 12 Conn.App. 212, 530 A.2d 206 (1987) (Fattibene I ). In Fattibene I, the plaintiff appealed from the judgment of the trial court, rendered after acceptance of the report of an attorney trial referee, and from an order of the trial court imposing sanctions on the plaintiff and his counsel. We found no error in the judgment rendered in accordance with the referee's report, and we dismissed the plaintiff's appeal from the court's order of sanctions for lack of a final judgment because the court had not yet determined the amount of the sanctions. Id., 216, 530 A.2d 206.

The plaintiff now appeals from the subsequent judgment of the trial court imposing sanctions of attorney's fees in the amount of $1170. The plaintiff also appeals from the court's denial of his motion for sanctions against the defendant. We find error.

Some further background is in order. The plaintiff brought suit alleging that the defendant had been negligent and had breached a warranty in repairing the transmission in the plaintiff's car. The case was referred to an attorney trial referee. On December 27, 1985, the referee filed his report finding that the plaintiff had not established any of his claims. During the course of the hearing before the referee, both parties moved for costs against the other. The plaintiff's motion, based on alleged bad faith pleading, was denied because the referee found no bad faith. The defendant's motion for costs pursuant to Practice Book § 111 was denied because the referee found that "there was not a sufficient showing of unreasonableness to warrant such an award."

On January 6, 1986, the plaintiff moved for an extension of time to object to or to move to correct the referee's report. Meanwhile, the defendant moved for judgment in accordance with the report. Thereafter, the plaintiff filed an objection to the report and to the defendant's motion for judgment, and the court granted the plaintiff's motion for an extension of time.

On January 30, 1986, the plaintiff filed a motion to correct the referee's findings of fact, and on February 5, 1986, he filed a memorandum and objection to acceptance of the report. On February 10, 1986, the defendant filed a brief in support of his motion for judgment accepting the report. On February 26, 1986, the plaintiff filed a supplement to his earlier memorandum and objection to acceptance of the report, and a reply brief in opposition to the defendant's brief in support of the defendant's motion for judgment. The trial court referred the entire matter back to the referee.

On March 21, 1986, the parties appeared before the referee pursuant to the court's order. At that proceeding, the plaintiff filed with the referee a motion to "continue the fact finding hearing," based on the claims, supported by an affidavit of his counsel, that there was newly discovered material evidence and that the original hearing had ended before he had an opportunity to present rebuttal evidence to the defendant's case. The referee denied that motion. The parties then argued the other issues that were included in the referral back to the referee. On February 25, 1986, the plaintiff filed an objection to the referee's ruling on the plaintiff's motion to continue the fact finding hearing.

On April 3, 1986, the referee rendered a supplemental report, in which he noted that "the file is a procedural morass." He first articulated his earlier ruling on the plaintiff's motion to continue the fact finding hearing. With respect to the plaintiff's claim of newly discovered evidence, the referee found that the plaintiff had not shown that he had exercised due diligence to discover the evidence before trial or that the evidence did not exist at the time of trial, and that the plaintiff had not shown that the alleged new evidence was material or that it would change the outcome of the case. With respect to the plaintiff's claim that the referee had denied him an opportunity to rebut the defendant's case, the referee found that the plaintiff did not offer or attempt to offer rebuttal evidence other than through posttrial motions. The referee stated: "At best the plaintiff's argument on this issue is specious."

The referee's supplemental report then addressed the plaintiff's motion, dated January 10, 1986, objecting to the referee's factual findings, and his motion dated January 30, 1986, to correct the factual findings. The referee devoted sixteen pages of his supplemental report to rejecting the plaintiff's claims in detail, with the sole exception that one factual finding in the original report was amended in accordance with the plaintiff's request.

On April 4, 1986, the plaintiff moved for an extension of time to file an exception to the referee's supplemental report. On April 8, 1986, the defendant filed an objection to the plaintiff's motion for extension of time. On April 11, 1986, the plaintiff filed his exception to the referee's supplemental report and a motion to introduce new evidence.

On April 21, 1986, counsel for the parties appeared before the trial court at short calendar. The short calendar list indicated three matters set down for consideration by the court: (1) the plaintiff's exception to the referee's supplemental report; (2) the plaintiff's motion for extension of time; and (3) the plaintiff's motion to introduce new evidence.

On the same day, but before the short calendar proceedings on those three calendared motions, the defendant filed with the clerk of the court the motion that ultimately led to this appeal, namely, a motion for sanctions against the plaintiff. That motion requested that the court impose sanctions on the plaintiff on the ground that the plaintiff had repeatedly filed pleadings in bad faith, with intent to harass the defendant and to delay the entry of judgment. The legal bases of the motion were Practice Book § 111, ¹ General Statutes § 52-99, ² General Statutes § 51-84, ³ "the court's announced policy of enforcing rule 11 of the Federal Rules of Civil Procedure in this Judicial District," and "the court's inherent power to supervise and regulate attorneys coming before it...."

During the course of the short calendar proceedings, the defendant referred to his filing of the motion for sanctions. The court stated: "All right. I'll read the transcript. I'll read the arguments. I will entertain your motion for sanctions if I feel it's dilatory. I will impose a sanction." The plaintiff thereupon began to argue his motion to introduce new evidence, noting: "That's one of the three motions I brought today." After brief argument by both parties regarding that motion, the court stated: "I will take the papers.... I'm serious. If it's dilatory, we have rule 11 here."

One week later, on April 28, 1986, at approximately 9 a.m., the plaintiff filed with the clerk of the court a thirteen page objection to the defendant's motion for sanctions. On the same day, the parties appeared before the court at short calendar. The only matter calendared was the defendant's motion for judgment on the referee's report. The colloquy between the court and counsel indicates that the court had already ruled on the defendant's motion for sanctions, and that its memorandum of decision was being typed and would soon be sent to counsel. At the court's suggestion, the defendant's motion for judgment went off the calendar.

On May 5, 1986, the court filed its memorandum of decision, dated April 28, 1986, on the defendant's motion for sanctions. The court referred to the defendant's motion as being pursuant to Practice Book § 111, General Statutes §§ 51-84 and 52-99, and the court's inherent authority to supervise the conduct of attorneys appearing before it. The court did not refer, however, to rule 11 of the Federal Rules. The court stated: "Plaintiff and his counsel are charged with knowing the rulings of practice in this court and the statutes controlling the conduct of proceedings before the court. A review of this file can lead to only two possible conclusions concerning the conduct of plaintiff and his counsel; either they are unfamiliar with the practice of law before the court or they have chosen to ignore the rules and statutes governing that practice. Neither event can or will be tolerated by the court."

The court found, from its review of the file, that the plaintiff had repeatedly asserted claims that were unsupported by the record, and had demonstrated a lack of understanding or knowledge of the legal authority controlling the disposition of the case. It specifically referred to the fact that the plaintiff's attempt, after trial, to introduce "new evidence" that was not offered at the trial, without any possible justification for his failure to do so, was in derogation of his burden to present his complete case at trial. The court stated: "The fact that the plaintiff, by design or oversight, failed to meet the burden does not justify the frivolous and bad faith efforts to correct his error after trial."

The court concluded as follows: "A review of the entire file leads to the inevitable finding that the plaintiff and his counsel, intentionally or through lack of knowledge, have conducted themselves in a bad faith manner and/or with a frivolous disregard for the practice of law before this court." The court therefore imposed the following sanction: "The p...