Stone v. Pattis

• Decision Date: 16 July 2013
• Docket Number: No. 33546.,33546.
• Citation: 144 Conn.App. 79,72 A.3d 1138
• Parties: Lucas B. STONE et al. v. Norman A. PATTIS et al.
• Court: Connecticut Court of Appeals

144 Conn.App. 79

72 A.3d 1138

Lucas B. STONE et al.

v.Norman A. PATTIS et al.

No. 33546.

Appellate Court of Connecticut.

Argued Jan. 9, 2013.

Decided July 16, 2013.

Joan L. Zygmunt, self-represented, with whom, on the brief, was Lucas B. Stone, self-represented, the appellants (plaintiffs).

David R. Makarewicz, Hartford, for the appellees (defendants John J. Radshaw III et al.).

DiPENTIMA, C.J., and GRUENDEL and ALVORD, Js.

DiPENTIMA, C.J.

The plaintiffs, Lucas B. Stone and Joan L. Zygmunt, appeal from the judgment of the trial court granting the motions to strike and dismiss filed by the defendants, Thomas R. Gerarde, John J. Radshaw III, and Howd & Ludorf, LLC (Howd defendants).¹ On appeal, the plaintiffs claim that (1) judge trial referees were involved improperly in their case, and (2) the court erred in (a) determining that the Howd defendants filed an appropriate motion to strike and ruling in their favor, (b) eliminating claims in the plaintiffs' third amended complaint and denying their right to file a fourth amended complaint, and (c) granting the Howd defendants' motion to dismiss the fourth amended complaint.² We disagree that there was any impropriety in the judge trial referee involvement or that the court erred in any of the alleged ways and affirm the court's decisions to strike and dismiss respectively.

The following facts and procedural history are pertinent to this appeal. The plaintiffs engaged Norman A. Pattis and the Law Offices of Norman A. Pattis, LLC (Pattis defendants), as counsel in their lawsuit filed in federal court against the town of Westport in 2003 (federal action). The Howd defendants were retained as counsel by the town of Westport. During the pendency of the federal action, the plaintiffs became dissatisfied with Pattis' representation, and they filed a grievance with the federal grievance committee. Pattis withdrew his appearance in the federal action, and the plaintiffs proceeded self-represented until they finally withdrew the federal action. At time of the federal action and before Pattis' withdrawal, the Howd defendants hired Christy Doyle, who formerly had been an associate at Williams and Pattis, LLC. ³ The plaintiffs commenced the present action claiming damages arising out of these facts, but they have not alleged that Doyle had knowledge of the federal action while working for Williams and Pattis, LLC, or that she was involved with the federal action after being hired by the Howd defendants. ⁴

In May, 2009, the plaintiffs filed a fifteen count complaint against the Pattis defendants and the Howd defendants (original complaint). The plaintiffs alleged breach of contract, breach of fiduciary duty, fraud, violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a et seq., negligent infliction of emotional distress, and malpractice against the Pattis defendants, and alleged tortious interference with a fiduciary relationship, abuse of process, fraud, breach of fiduciary duty, CUTPA violations, and negligent infliction of emotional distress against the Howd defendants, and alleged conspiracy as to all defendants. A flurry of filings followed. The Howd defendants moved to strike the counts directed at them in the original complaint, and argued the motion, but the court marked the motion off after the plaintiffs filed a substitute complaint in October, 2009 (substitute complaint). The Howd defendants then filed a motion to reargue their motion to strike. The court, Adams, J., denied the motion to reargue, and the Howd defendants filed a motion to strike the counts directed at them in the substitute complaint in January, 2010. The court heard argument, and on April 16, 2010, the court, Brazzel–Massaro, J., issued a memorandum of decision striking the counts alleging conspiracy, tortious interference with a fiduciary relationship, abuse of process, fraud, breach of fiduciary duty and violations of CUPTA from the substitute complaint. Count fifteen, alleging negligent infliction of emotional distress, remained.

In April, 2010, the plaintiffs filed a second amended complaint, in which they added four new counts against the Howd defendants: violation of General Statutes § 53a–521, fraudulent nondisclosure of a conflict of interest and two violations of CUTPA. The plaintiffs also amended count fifteen of their substitute complaint in their second amended complaint. The Howd defendants moved to strike these counts from the second amended complaint on the ground that these counts constituted an improper amendment to the substitute complaint in violation of Practice Book § 10–60, but their argument was continued by the court because one of the plaintiffs, Stone, was not present at oral argument. Before argument on the motion to strike could be heard, the plaintiffs filed a third amended complaint. The Howd defendants filed a request to revise the third amended complaint, on the ground that the counts alleging a violation of § 53a–521, fraudulent nondisclosure of a conflict of interest and two violations of CUTPA were improper amendments to the substitute complaint. They also sought to reinstate count fifteen, alleging negligent infliction of emotional distress, as it had been pleaded in the substitute complaint because that count had survived their motion to strike. The court, Wenzel, J., overruled the plaintiffs' objections to the requested revisions. In September, 2010, the plaintiffs filed a fourth amended complaint in which only count fifteen was directed at the Howd defendants. Subsequently, in October, 2010, the Howd defendants filed a motion to dismiss count fifteen of the fourth amended complaint ⁵ on the ground that the court lacked subject matter jurisdiction because they have immunity from the plaintiffs' claim of negligent infliction of emotional distress. The plaintiffs requested leave to amend the fourth amended complaint, but their request was denied in December, 2010. The plaintiffs nevertheless filed a fifth amended complaint seven days later. On April 6, 2011, the court, Blawie, J., granted the Howd defendants' motion to dismiss count fifteen of the fourth amended complaint. This appeal followed.

I

We turn first to the plaintiffs' claim on appeal that judge trial referees improperly were involved in this case. The plaintiffs argue specifically that the Superior Court has no power to refer any matter to a referee unless all parties consent and they did not consent. We disagree that their consent was necessary for judge trial referees to participate in their case.

Throughout the course of this extensive litigation, judge trial referees presided over pretrial matters. The plaintiffs primarily argue that Hon. Kevin Tierney, judge trial referee, did not have jurisdiction to issue the January 11, 2010 order stating that all defendants' motions to strike be argued together. Further, the plaintiffs argue that Hon. A. William Mottolese, judge trial referee, should have recused himself, as Hon. Kevin Tierney, judge trial referee, had done at the plaintiffs' request. Throughout the extensive motion practice of this case, Hon. Kevin Tierney and Hon. A. William Mottolese, judge trial referees, decided a number of motions. The last decision made by a judge trial referee in this matter was in August, 2010. The motions to strike and dismiss that are the subject of this appeal were decided by Judges Brazzel–Massaro and Blawie, respectively, neither of whom are judge trial referees.

“[A] referee is not a judge of the [S]uperior [C]ourt or the [C]ourt of [C]ommon [P]leas but is sui generis, [and] sits as a special tribunal.... The [judge trial] referee system, as a special tribunal, does not encroach upon, and does not unconstitutionally compete with, other constitutional courts. On the contrary ... [judge trial] referees serve the very practical purpose of relieving [t]he court's crowded dockets.” (Citations omitted; internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 430, 696 A.2d 1254 (1997). General Statutes § 52–434(a)(1) provides in relevant part: “The Superior Court may refer any civil, nonjury case or with the written consent of the parties or their attorneys, any civil jury case pending before the court in which the issues have been closed to a judge trial referee who shall have and exercise the powers of the Superior Court in respect to trial, judgment and appeal in the case....” (Emphasis added.) Practice Book § 19–3 specifically states in relevant part: “The court may also refer to a judge trial referee any motion for summary judgment and any other pretrial matter in any civil nonjury or jury case.” (Emphasis added.) In the present case, the decisions made by judge trial referees were exclusively pretrial decisions. The Howd defendants filed a jury claim on March 19, 2012, and Judge Brazzel–Massaro issued a case management order to close the pleadings by June 29, 2012. Because all of the motions that were decided by judge trial referees were decided before the pleadings were closed, consent was not required under § 52–434(a). See also Girard v. Weiss, 43 Conn.App. 397, 407, 682 A.2d 1078 (“the absence of a consent requirement in the provisions of [Practice Book § 19–3] regarding the referral of pretrial matters to trial referees, in contrast to the express mandate for such consent contained in the provisions of ... § 52–434[a][1] and Practice Book § [19–3] regarding the referral of civil jury cases in which the issues have been closed and in which the trial referee is to exercise the powers of the Superior Court in respect to trial, judgment and appeal, indicates that no such consent is necessary for the referral of pretrial matters”), cert. denied, 239 Conn. 946, 686 A.2d 121 (1996). Accordingly, we determine that the plaintiffs' consent was not required at any stage of their litigation prior to June 29, 2012, and reject the claim of improper judge trial referee involvement.

II

The...