Perugini v. Giuliano

• Decision Date: 25 March 2014
• Docket Number: No. 35167.,35167.
• Citation: 89 A.3d 358,148 Conn.App. 861
• Court: Connecticut Court of Appeals
• Parties: Michael PERUGINI v. Rosemary GIULIANO et al.

148 Conn.App. 861

89 A.3d 358

Michael PERUGINI

v.Rosemary GIULIANO et al.

No. 35167.

Appellate Court of Connecticut.

Argued Dec. 2, 2013.

Decided March 25, 2014.

Michael Perugini, self-represented, the appellant (plaintiff).

Amber J. Hines, Cheshire, with whom was Paul Grocki, for the appellees (defendants).

BEAR, KELLER and HARPER, Js.

KELLER, J.

The self-represented plaintiff, Michael Perugini, appeals from the judgment of the trial court rendered in favor of the defendants, attorney Rosemary Giuliano and the law firm with which she is associated, Giuliano & Richardson, LLC, in his action alleging misconduct in the defendants' representation of the plaintiff's wife during the couple's prior divorce proceedings. The plaintiff claims that the court erred in (1) suspending his February 8, 2012 deposition until the pleadings were closed, (2) denying his February 22, 2012 request for leave to amend his complaint, (3) dismissing his claim of negligent infliction of emotional distress for lack of subject matter jurisdiction, and (4) striking his August 6, 2012 substitute complaint from the docket and rendering judgment for the defendants. We affirm the judgment of the trial court.

The record reveals the following procedural history. On September 9, 2010, the plaintiff, appearing before the court as a self-represented party, filed a two count complaint against the defendants for wilful violation of the Rules of Professional Conduct and negligent infliction of emotional distress. The complaint alleged that Giuliano had engaged in misconduct during her representation of Kimberly Gamble–Perugini, the plaintiff's former wife, in prior marriage dissolution proceedings against the plaintiff. Specifically, it alleged that Giuliano failed to disclose a conflict of interest resulting from her prior representation of Judge Elizabeth Bozzuto, who presided over postjudgment proceedings and issued various rulings between April 27, 2009, and June 8, 2010. Although the complaint acknowledged that any allegedly inappropriate orders issued by Judge Bozzuto had been vacated, the plaintiff sought damages from the defendants for the stress, agony, depression and expense he claims to have endured as a result of Giuliano's alleged misconduct.

This action was commenced on September 10, 2010. The defendants filed a request to revise the plaintiff's complaint on September 21, 2011, to which the plaintiff did not properly object until December 30, 2011. In the interim, the plaintiff noticed Giuliano's deposition for October 20, 2011. On October 14, 2011, the defendants filed a motion for a protective order on several grounds, including the claim that privileged documents involving the defendants' representation of Gamble–Perugini should not be explored and the deposition should be limited to the allegations in the complaint. On December 6, 2011, the court, Trombley, J., issued an order allowing the deposition to proceed by February 17, 2012, which further stated: “The areas inquired into at said deposition shall be those that are framed by the allegations in the plaintiff's complaint....” He further indicated that “[t]he defendants are not required to produce their file or any documents in their possession pertaining to the dissolution action ... entitled Kimberly Gamble–Perugini v. Michael Perugini, as the information contained therein is protected by attorney-client privilege.”

On January 17, 2012, Judge Trombley, pursuant to Practice Book § 10–37(b),¹ ordered the plaintiff to revise his complaint as requested by the defendants. The plaintiff filed a motion to reargue to which the defendants objected. On February 8, 2012, Judge Trombley denied the motion to reargue and ordered the plaintiff to revise his complaint and to incorporate the revisions ordered by the court on January 17, 2012. On February 8, 2012, the plaintiff, having not yet revised his complaint, commenced a deposition of Giuliano. During the deposition, the plaintiff asked Giuliano questions regarding her communications with Gamble–Perugini during the prior divorce proceedings. The defendants objected, claiming that the information was protected by the attorney-client privilege and that the questions were outside the scope of the pleadings. Judge Trombley was asked to resolve the issue and, upon learning that the plaintiff still had not revised his complaint, ordered, sua sponte, that a revised complaint be filed within two weeks. Additionally, Judge Trombley suspended the deposition until, absent a motion for summary judgment, the pleadings were closed and all the issues were framed. On February 27, 2012, the plaintiff filed a motion to reargue asking Judge Trombley to reconsider the suspension of the deposition of Giuliano, which the court denied.

On February 21, 2012, the plaintiff filed a revised complaint that still contained only two counts, wilful violation of the Rules of Professional Conduct and negligent infliction of emotional distress. Althoughthe revised complaint addressed some of the defendants' requested revisions, it also included new factual allegations that Giuliano had engaged in representation of Gamble–Perugini without her consent.

Only one day later, on February 22, 2012, the plaintiff filed a request for leave to amend his revised complaint, to which the defendants objected. The proposed amended complaint included with the request, dated February 22, 2012, deleted the count for wilful violation of the Rules of Professional Conduct, maintained the count for negligent infliction of emotional distress and added three new counts: fraudulent misrepresentation, conspiracy to defraud, and violation of the Connecticut Unfair Trade Practice Act (CUTPA), General Statutes § 42–110a et seq. The proposed amended complaint, in paragraphs 10 and 12 of the second count, further expanded the facts alleged in support of the plaintiff's claim that Giuliano had engaged in unauthorized representation of Gamble–Perugini while Giuliano had knowledge of the couple's reconciliation. On March 21, 2012, Judge Trombley sustained the defendants' objection to the plaintiff's request to file a proposed amended complaint and established the two count February 21, 2012 revised complaint as the operative complaint. The court's order stated: “While our courts have been liberal in permitting amendments ... this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a [request] to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment.... Whether to allow an amendment is a matter left to the sound discretion of the trial court.... Practice Book § 10–60(b) provides: The judicial authority may restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial.” (Citation omitted; internal quotation marks omitted.) On April 6, 2012, the plaintiff filed a motion to recuse Judge Trombley, which the court denied on April 23, 2012.

On April 9, 2012, the defendants filed another request to revise the plaintiff's February 21, 2012 revised complaint, to which the plaintiff objected. On May 14, 2012, the court, Dooley, J., overruled the plaintiff's objections, thereby requiring plaintiff to revise his complaint as requested by the defendants. The plaintiff's second revised complaint, dated and filed on May 22, 2012, again set forth two counts of wilful violation of the Rules of Professional Conduct and negligent infliction of emotional distress. The defendants then moved to strike the second revised complaint, arguing that the Rules of Professional Conduct do not give rise to a cause of action and that the count of negligent infliction of emotional distress was barred by the doctrine of absolute immunity for attorney conduct in the course of a judicial proceeding.² On July 26, 2012, Judge Dooley granted the defendants' motion to strike as to the count sounding in wilful violation of the Rules of Professional Conduct³ and dismissed the count sounding in negligent infliction of emotional distress for lack of subject matter jurisdiction under the doctrine of absolute immunity.

On August 6, 2012, pursuant to Practice § 10–44,⁴ the plaintiff filed a substitute complaint, premised on similar facts as previously set forth, but asserting six counts sounding in conspiracy to defraud, alienation of affection, violation of CUTPA, abuse of process, vexatious litigation and intentional infliction of emotional distress. The defendants objected to this substitute complaint, arguing that the plaintiff was required to request leave to amend his complaint pursuant to Practice Book § 10–60⁵ and that the amendments made by the plaintiff were retaliatory, violated prior court orders, and were prejudicial to the defendants, given the age of the case and the fact that that many of the claims and allegations already had been ruled legally insufficient and improper. The plaintiff filed an opposition to the defendants' objection, arguing that he had the right to file a substitute complaint pursuant to Practice Book § 10–44 and that the defendants' objection was a procedurally improper pleading. The plaintiff's opposition also addressed the defendants' nonprocedural arguments that the substitute complaint violated the law of the case and prejudiced the defendants. On September 25, 2012, the court, Shapiro, J., sustained the defendants' objection and struck the August 6, 2012 substitute complaint from the record. On September 27, 2012, the defendants filed a motion for judgment. On October 11, 2012, the plaintiff filed a motion for extension of time to plead and a motion to reargue. On October 17, 2012, Judge Shapiro denied the plaintiff's motions, granted the defendants' motion for judgment and rendered judgment for the defendants. This appeal followed. Additional facts and procedural history will be set forth as necessary.

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