Thalheim v. Greenwich

• Decision Date: 17 July 2001
• Docket Number: (SC 16363)
• Citation: 256 Conn. 628,775 A.2d 947
• Court: Connecticut Supreme Court
• Parties: PETER A. THALHEIM v. TOWN OF GREENWICH ET AL.

256 Conn. 628

775 A.2d 947

PETER A. THALHEIM v. TOWN OF GREENWICH ET AL.

(SC 16363)

Supreme Court of Connecticut.

Argued April 18, 2001.

Officially released July 17, 2001.

Borden, Katz, Vertefeuille, Zarella and Pellegrino, Js. Peter A. Thalheim, pro se, the plaintiff in error.

Gregory T. D'Auria, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the intervening defendant in error.

Opinion

KATZ, J.

This case is before us on a writ of error¹ brought by the plaintiff in error, Peter A. Thalheim, an attorney, who seeks reversal of an order of the trial court sanctioning him for filing an amicus brief in the underlying matter; see Leydon v. Greenwich, 57 Conn. App. 712, 750 A.2d 1122, cert. granted, 254 Conn. 904, 905, 755 A.2d 881, 882 (2000); Leydon v. Greenwich, 57 Conn. App. 727, 750 A.2d 492 (2000); without first obtaining permission from the court or filing an appearance in the case. Brenden Leydon and the town of Greenwich, the plaintiff and the defendant, respectively, in the underlying action, informed this court that they did not intend to file a brief or participate in this proceeding despite being named by Thalheim as the defendants in error.² We subsequently granted the motion of the attorney general, Richard Blumenthal, to intervene and be made the defendant in error in order to defend the trial court's decision. We conclude that the trial court did not abuse its discretion. Accordingly, we affirm the judgment of the trial court.

The following facts and procedural history as set out by the Appellate Court are relevant to our resolution of this writ. "In April, 1995, Brenden P. Leydon filed an amended complaint challenging an ordinance of the defendant town of Greenwich (town) that restricts use of its public parks and public beaches to residents of the town. On August 30, 1995, the trial court ordered that notice be published inviting interested parties to apply to the court to be made parties to that action. The court's order required Leydon to publish the notice prior to September 29, 1995, in the Greenwich Time newspaper and further stated that any person desiring to be made a party to the action must apply within twenty-one days of the publication date. Thalheim did not move to intervene to become a party.

"The [trial] court heard the underlying case in early 1998 with final arguments scheduled for March 26, 1998. On March 23, 1998, the trial judge received, by hand delivery through the clerk's office, a twenty-three page `Amicus Memorandum of Law In Opposition Of Relief Claimed By Plaintiff,' signed by Thalheim. Although [Thalheim] is an attorney admitted to the practice of law in this state, his brief did not identify him as purporting to represent any party in the action, nor did it represent that he had filed an appearance in the case or had been granted permission to file an amicus curiae brief. On March 26, 1998, the [trial] court discussed the receipt of the brief with the attorneys in the case. The consensus was that the court should not read the brief, and it did not do so."³Leydon v. Greenwich, supra, 57 Conn. App. 728-30.

The following additional facts are also relevant to this writ. On July 8, 1998, the trial court rendered judgment for the defendants in the underlying action,⁴ and on July 9, 1998, the court issued an order to Thalheim to appear and show cause why he should not be sanctioned under General Statutes § 51-84⁵ for filing an amicus curiae brief without following the rules of practice. Because the notice did not specify which rules were alleged to have been violated, Thalheim wrote to the trial court requesting notification as to which rules he allegedly had violated. The court thereafter informed Thalheim that it was his burden to show the court which rule he had followed in filing the brief. At the July 22, 1998 show cause hearing, the trial court determined that an amicus curiae brief could not be filed without first obtaining permission from the court. Accordingly, it concluded that Thalheim had violated Practice Book §§ 3-2 through 3-8, 5-1, 10-6 and 11-1 because he had not filed an appearance in the underlying action or obtained permission from the court to file an amicus curiae brief.⁶ The court sanctioned Thalheim pursuant to § 51-84; see footnote 5 of this

complying with Section 3-4, shall mail or deliver a copy of the appearance to the attorney for the plaintiff or, if there is no such attorney, to the plaintiff himself or herself....

"(d) Service of such appearances shall be made in accordance with Sections 10-12 through 10-17. Proof of service shall be endorsed on the appearance filed with the clerk."

Practice Book § 3-6 provides: "Appearances for Bail or Detention Hearing Only

"(a) An attorney, prior to the entering of an appearance by any other attorney, may enter an appearance for the defendant in a criminal case for the sole purpose of representing the defendant at a hearing for the fixing of bail. Such appearance shall be in writing and shall be styled, `for the purpose of the bail hearing only.' Upon entering such an appearance, that attorney shall be entitled to confer with the prosecuting authority in connection with the bail hearing.

"(b) An attorney may enter an appearance in a delinquency proceeding for the sole purpose of representing the respondent at any detention hearing; such appearance shall be in writing and styled `for the purpose of detention hearing only.'"

Practice Book § 3-7 provides in relevant part: "Consequence of Filing Appearance

"(a) Except by leave of the judicial authority, no attorney shall be permitted to appear in court or to be heard in behalf of a party until the attorney's appearance has been entered. No attorney shall be entitled to confer with the prosecuting authority as counsel for the defendant in a criminal case until the attorney's appearance has been so entered...."

Practice Book § 3-8 provides: "Appearance for Represented Party

"Whenever an attorney files an appearance for a party, or the party files an appearance for himself or herself, and there is already an appearance of an attorney or party on file for that party, the attorney or party filing the new appearance shall state thereon whether such appearance is in place of or in addition to the appearance or appearances already on file. If the new appearance is stated to be in place of any appearance or appearances on file, the party or attorney filing that new appearance shall serve, in accordance with Sections 10-12 through 10-17, a copy of that new appearance on any attorney or party whose appearance is to be replaced by the new appearance. Unless a written objection is filed within ten days after the filing of an in-lieu-of appearance, the appearance or appearances to be replaced by the new appearance shall be deemed to have been withdrawn and the clerk shall make appropriate entries for such purpose on the file and docket. The provisions of this section regarding parties filing appearances for themselves does not apply to criminal cases."

Practice Book § 5-1 provides: "Trial Briefs

"The parties may, as of right, or shall, if the judicial authority so orders, file, at such time as the judicial authority shall determine, written trial briefs opinion; ordering him "to read the Connecticut Practice Book, to listen to audiocassettes available from the Connecticut Bar Association pertaining to civil practice and procedure in Connecticut courts, and to certify to the court within four months that he had listened to the tapes and read the entire Connecticut Practice Book, including the rules concerning professional conduct." Leydon v. Greenwich, supra, 57 Conn. App. 730.

Although not a party in the underlying action, Thalheim filed a direct appeal from the trial court's order in the Appellate Court, under the case caption "Leydon v. Town of Greenwich," on August 7, 1998. Id. Pursuant to Practice Book § 67-3,⁷ both the plaintiff and the defendant in the underlying case indicated that they did not intend to file a brief or participate in the appeal. The

discussing the issues in the case and the factual or legal basis upon which they ought to be resolved."

Practice Book § 10-6 provides: "Pleadings Allowed and Their Order

"The order of pleading shall be as follows:

"(1) The plaintiffs complaint.

"(2) The defendant's motion to dismiss the complaint.

"(3) The defendant's request to revise the complaint.

"(4) The defendant's motion to strike the complaint.

"(5) The defendant's answer (including any special defenses) to the complaint.

"(6) The plaintiffs request to revise the defendant's answer.

"(7) The plaintiffs motion to strike the defendant's answer.

"(8) The plaintiffs reply to any special defenses."

Practice Book § 11-1 provides: "Form of Motion and Request

"Every motion, request, application or objection directed to pleading or procedure, unless relating to procedure in the course of a trial, shall be in writing and shall, except in the case of a request, have annexed to it a proper order, and a proper order of notice and citation, if one or both are necessary. Such motion, request, application or objection shall be served on all parties as provided in Sections 10-12 through 10-17 and, when filed, the fact of such service shall be endorsed thereon." attorney general moved to intervene and be made a party defendant in order to defend the decision of the trial court. The Appellate Court granted this request. On May 16, 2000, in light of our decision in State v. Salmon, 250 Conn. 147, 167, 735 A.2d 333 (1999), in which this court clarified that only an actual party to the underlying action may file an appeal, the Appellate Court dismissed Thalheim's appeal.⁸ Because Thalheim was not a party to the underlying action, the Appellate Court concluded that he had "no right of appellate review pursuant to [General Statutes] § 52-263."⁹Leydon v. Greenwich, supra, 57 Conn. App. 730-31....