Picard v. Guilford House, LLC , 178 Conn. App. 134 ( 2017 )

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ANGELA PICARD v. THE GUILFORD
HOUSE, LLC, ET AL.
(AC 39856)
Alvord, Sheldon and Keller, Js.
Syllabus
The plaintiff in error, L, the former attorney for the plaintiff in the underlying
action, brought this writ of error to challenge the trial court’s imposition
of financial sanctions against her for her alleged misconduct while con-
ducting an out-of-state deposition in the underlying action. L claimed,
inter alia, that the imposition of sanctions against her was barred by
res judicata and collateral estoppel because the statewide grievance
committee (committee) already had acted on the matter by issuing a
reprimand in connection with a grievance proceeding brought against
her, and that the underlying defendants should have been collaterally
estopped from seeking court imposed sanctions because they were in
privity with the committee. Held:
1. The trial court’s order imposing financial sanctions on L was proper,
as there was no privity between the underlying defendants and the
committee, and, thus, the imposition of costs on the plaintiff was not
barred by the doctrines of res judicata and collateral estoppel: the
underlying defendants were not a party to the grievance proceeding
that led to L’s reprimand and played no role in bringing L’s alleged
misconduct to the notice of the committee, which played no role in the
underlying case in which the misconduct had occurred, and not only
were the parties in the separate proceedings not the same, but their
interests in such proceedings were entirely different in that the commit-
tee was concerned with protecting the public from attorney misconduct
and the defendants were trying to recover costs and fees incurred due
to the alleged misconduct; moreover, even if there was privity between
the defendants and the committee, res judicata and collateral estoppel
could not apply to bar the sanctions imposed in that, although the trial
court did not determine the precise amount of financial sanctions on
the date that it granted the defendants’ motion for sanctions, it granted
that motion before the matter was forwarded to the committee such
that the committee’s later imposition of discipline on L could not have
precluded the trial court’s earlier imposition of sanctions on her.
2. L’s claim that the sanctions imposed against her were not proportional
to her proven misconduct and, thus, were improperly punitive was
unavailing, as the trial court reasonably could have found that the
amount of the sanctions imposed was appropriate and did not abuse
its discretion in awarding the amount of financial sanctions that it did
against L: that court imposed sanctions on L based on costs and attor-
ney’s fees incurred by the defendants that directly stemmed from L’s
misconduct during the deposition, and it did not impose as sanctions
on L any of the costs or fees incurred in the defense of a grievance
proceeding brought by the underlying plaintiff against the defendants’
attorney, as requested by the defendants, which further supported the
reasonableness of the sanctions imposed; moreover, the court could
have found that the total amount of sanctions imposed was reasonable
because the issues raised through L’s conduct were unusual, and
required rapid and substantial legal work by the defendants’ counsel,
and because the court could have found that the complexity of the legal
issues raised reasonably resulted in more of the defendants’ lawyers
billing more time.
Argued September 15—officially released November 21, 2017
Procedural History
Writ of error from the decision of the Superior Court
in the judicial district of Hartford, Miller, J., granting
the defendants’ motions for sanctions, brought to the
Supreme Court, which transferred the matter to this
court. Writ of error dismissed.
Norman Pattis, for the appellant (plaintiff in error
Linda Lehmann).
Christopher H. Blau, with whom, was David J.
Robertson, and, on the brief, were Madonna A. Sacco
and Heidi M. Cilano, for the appellees (defendants).
Opinion
SHELDON, J. This matter comes before this court
on a writ of error brought by the plaintiff in error,
Linda Lehmann, former attorney for the plaintiff in the
underlying action, Angela Picard.1 The plaintiff in error
challenges the order of the trial court, Miller, J.2 impos-
ing financial sanctions upon her for misconduct while
conducting an out-of-state deposition in the underlying
action. We conclude that the court did not abuse its
discretion in imposing the challenged sanctions.
Accordingly, we dismiss the writ of error.
The record discloses the following relevant facts and
procedural history. The underlying wrongful death
action was commenced in October, 2010. Picard alleged
that her decedent died due to medical malpractice by
the defendant Victor Sawicki, a physician,3 and indepen-
dent negligence by the Guilford House defendants and
by the defendant 109 West Lake Avenue, LLC.
The plaintiff in error noticed the deposition of Cath-
leen O’Connor, a former administrator at The Guilford
House, LLC, for November 1, 2013, in Augusta, Maine.
After the O’Connor deposition recessed, the Guilford
House defendants filed a motion for a protective order
on November 27, 2013, in which they requested the
court to enter an order terminating the deposition based
upon the plaintiff in error’s allegedly inappropriate and
unprofessional conduct in connection therewith. This
motion was followed by a second motion filed on
December 5, 2013, in which the Guilford House defen-
dants sought both to disqualify the plaintiff in error as
counsel in the underlying action and to impose financial
sanctions upon her to remunerate them for costs and
attorney’s fees they claimed to have incurred as a result
of the plaintiff in error’s alleged misconduct. After the
filing of the latter motion, the court ordered all counsel
to provide it, by e-mail and hard copy, copies of all
depositions taken in the case to date, as well as DVD
copies of all depositions that thus far had been
recorded. In compliance with this order, the plaintiff
in error disclosed, inter alia, that she had made an
iPhone voice memo recording of the O’Connor deposi-
tion, which she submitted to the court ex parte, claiming
that her client was entitled by privilege not to disclose
it to the defendants. The court thereafter ruled that the
recording was not in fact privileged, and so ordered
the plaintiff in error to deliver copies of it to all oppos-
ing counsel.
Upon listening to the recording, counsel for the Guil-
ford House defendants realized that it contained not
only on-the-record statements from the deposition but
off-the-record conversations between O’Connor and
The Guilford House counsel, and The Guilford House
counsel and counsel for the other defendants. The Guil-
ford House defendants subsequently filed a supplemen-
tal motion on January 3, 2014, in which they renewed
their requests to disqualify the plaintiff in error as coun-
sel in the underlying action and to impose financial
sanctions upon her as a result of her misconduct in
connection with the O’Connor deposition. The Guilford
House defendants also filed a motion for order on Janu-
ary 8, 2014, in which they requested that the court
not listen to the recording. To avoid creating possible
grounds for his recusal, Judge Miller requested another
judicial authority, Dewey, J., to conduct a hearing on
what to do with the recording. Judge Dewey heard the
parties on the issues raised in the January 8 motion on
January 17, 2014. At the hearing, Judge Dewey ordered
that all copies of the recording be placed under seal in
the custody of Judge Miller and that the plaintiff in
error provide written assurances to the court and the
defendants that the recording had been completely and
permanently deleted from her phone.4
In a memorandum of decision dated April 3, 2014, the
court, Miller, J., granted the Guilford House defendants’
January 3 motion for sanctions. The court imposed
these sanctions upon the plaintiff in error based upon
its established authority to do so in response to an
attorney’s ‘‘course of . . . dilatory, bad faith and
harassing litigation conduct, even in the absence of a
specific rule or order of the court that is claimed to
have been violated.’’ (Internal quotation marks omit-
ted.) Wyszomierski v. Siracusa, 290 Conn. 225, 234,
963 A.2d 943 (2009). Based upon the transcripts of the
O’Connor deposition and the hearing before Judge
Dewey, as well as pleadings and correspondence
between the plaintiff and the defendants’ counsel and
between counsel and the court, the court described the
O’Connor deposition as ‘‘unusually contentious’’ and
found that the plaintiff in error’s conduct during the
deposition was so inappropriate as to warrant the impo-
sition of sanctions. The court ruled that such sanc-
tionable conduct included: scheduling the deposition
to end at an unusually early hour without informing the
defendants’ counsel of that arrangement until after the
deposition had begun;5 conducting an unfocused exami-
nation not likely to lead to relevant or discoverable
information from the witness, in violation of Practice
Book § 13-30 (c);6 failing to ask for explanations to
objections by nonquestioning attorneys, as permitted
by Practice Book § 13-30 (b),7 which might have made
the deposition go more smoothly and productively; and
being rude. It also found that the plaintiff in error’s
unconsented to recording of the O’Connor deposition,
particularly of the off-the-record conversations
between lead counsel for the Guilford House defen-
dants and counsel for Dr. Sawicki and between lead
counsel for the Guilford House defendants and the
deponent, was improper and violated Practice Book
§ 13-27 (f).8 The court made no finding as to whether the
plaintiff in error had violated the Rules of Professional
Conduct. It did, however, state that such violations
might have occurred, and thus it sent its decision to
the statewide disciplinary counsel for such further
investigation and action as it deemed appropriate, along
with a recommendation for an interim suspension of
the plaintiff in error.9 The court conducted a hearing
on October 19, 2015, to hear evidence and oral argument
as to the amount of sanctions it should impose.
Thereafter, in a memorandum of decision dated July
14, 2016, the court specified the amount of the financial
sanctions to be imposed upon the plaintiff in error. The
Guilford House defendants had claimed, in an affidavit
from their counsel, that they had incurred costs and
attorney’s fees totaling $72,558.84 for services rendered
in connection with the deposition and all subsequent
proceedings to which it gave rise. The court disallowed
$12,187 of such costs and fees, which were incurred
for services rendered in defense of a separate grievance
filed by the underlying plaintiff against lead counsel
for the Guilford House defendants, Madonna Sacco, in
connection with the O’Connor deposition. In sum, the
court awarded $60,371.84 in financial sanctions against
the plaintiff in error, to be paid directly to counsel for
the Guilford House defendants. This writ of error
followed.
The plaintiff in error contends that it is a matter of
first impression in Connecticut as to ‘‘whether financial
sanctions are . . . appropriate as a matter of law
where . . . a lawyer is grieved for conduct arising out
of litigation, and the matter is resolved by the grievance
process.’’ She argues that the imposition of sanctions
against her in the form of costs was barred by res
judicata because the statewide grievance committee
had already acted on the matter. She also argues that
the Guilford House defendants should be collaterally
estopped from seeking costs in the form of court-
imposed sanctions upon her because their counsel was
in privity with the statewide grievance counsel in the
grievance proceeding and the statewide grievance com-
mittee fully and fairly litigated the misconduct for which
the Guilford House defendants requested sanctions
from the trial court. Finally, she argues that the amount
of sanctions imposed upon her was not proportional
to her violation, and thus constituted an abuse of the
court’s discretion. We reject the plaintiff in error’s
claims.
The plaintiff in error first argues that the imposition
of sanctions in the form of costs was barred by princi-
ples of res judicata and collateral estoppel as a result
of the statewide grievance committee’s prior issuance
of a reprimand to her based upon the same alleged
misconduct that underlay the court’s order of sanctions
against her.
‘‘Res judicata, or claim preclusion, is distinguishable
from collateral estoppel, or issue preclusion. Under the
doctrine of res judicata, a final judgment, when ren-
dered on the merits, is an absolute bar to a subsequent
action, between the same parties or those in privity with
them, upon the same claim. . . . In contrast, collateral
estoppel precludes a party from relitigating issues and
facts actually and necessarily determined in an earlier
proceeding between the same parties or those in privity
with them upon a different claim. . . . Although the
two doctrines are distinct from each other, both operate
only against the same parties or those in privity with
them. While it is commonly recognized that privity is
difficult to define, the concept exists to ensure that the
interests of the party against whom collateral estoppel
[or res judicata] is being asserted have been adequately
represented because of his purported privity with a
party at the initial proceeding. . . . A key consider-
ation in determining the existence of privity is the shar-
ing of the same legal right by the parties allegedly in
privity.’’ (Citations omitted; internal quotation marks
omitted.) Weiss v. Statewide Grievance Committee, 227
Conn. 802, 818, 633 A.2d 282 (1993).
‘‘In determining whether privity exists, we employ
an analysis that focuses on the functional relationships
of the parties. Privity is not established by the mere
fact that persons may be interested in the same question
or in proving or disproving the same set of facts. Rather,
it is, in essence, a shorthand statement for the principle
that collateral estoppel [or res judicata] should be
applied only when there exists such an identification
in interest of one person with another as to represent
the same legal rights so as to justify preclusion.’’ (Inter-
nal quotation marks omitted.) Ventres v. Goodspeed
Airport, LLC, 301 Conn. 194, 207, 21 A.3d 709 (2011).
See also Smigelski v. Kosiorek, 138 Conn. App. 728,
735, 54 A.3d 584 (2012), cert. denied, 308 Conn. 901, 60
A.3d 287 (2013) (‘‘[t]he crowning consideration . . . [in
regard to] the basic requirement of privity . . . [is] that
the interest of the party to be precluded must have been
sufficiently represented in the prior action so that the
application of [res judicata] is not inequitable’’ [internal
quotation marks omitted]).
While the plaintiff in error acknowledges that the
Guilford House defendants were not a party to the griev-
ance proceeding that led to her reprimand, she argues
that they were in privity with the statewide grievance
committee because the claims litigated against her in
the grievance proceeding were identical to those for
which she was sanctioned by Judge Miller. She also
argues that the Guilford House defendants were in priv-
ity with the statewide grievance committee because the
Guilford House defendants and the statewide grievance
committee were ‘‘in the same functional relationship
with [her] when considering whether [her] conduct
. . . warrant[ed] sanctions.’’ She further argues that
because the statewide grievance committee had the
ability to impose costs and fines against her as a poten-
tial sanction, the Guilford House defendants should be
barred from recovering costs from her in the form of
sanctions imposed upon her by the trial court. No privity
exists here between the statewide grievance committee
and the Guilford House defendants; thus, we are not
persuaded by her argument.
Our Supreme Court’s decision in Weiss v. Statewide
Grievance Committee, supra, 227 Conn. 802, is instruc-
tive. In Weiss, an attorney received a reprimand from
the statewide grievance committee after the committee
concluded that he had violated the Code of Professional
Responsibility.10 Id., 809. The attorney appealed from
the reprimand to the Superior Court, which affirmed
the committee’s decision. Id., 804. The attorney then
appealed the trial court’s decision, claiming, inter alia,
that the trial court had improperly concluded that the
doctrines of res judicata and collateral estoppel, as
applied to the settlement of his civil action against his
clients, did not preclude the committee from making a
finding of attorney misconduct. Id., 804-805. Specifi-
cally, the attorney argued that because both the civil
complaint and the grievance complaint involved the
same claims and the same allegations between the same
parties on the basis of the same alleged ethical violation,
the trial court should have concluded that the civil
action had a preclusive effect on the statewide griev-
ance committee’s decision. Id., 817. In affirming the
judgment of the trial court, our Supreme Court found
that the parties to the grievance proceeding were not
the same as, or in privity with, those in the civil action
for two reasons. First, there are no adversary parties
to grievance proceedings in the technical legal sense.
Id., 819. Second, even if the statewide grievance com-
mittee could be considered a party, the parties in the
civil action were only the attorney and his former cli-
ents, not the statewide grievance committee, which was
not in privity with any party to that action. Id.Just as the statewide grievance committee was not
in privity with the parties in the civil action in Weiss,
the statewide grievance committee was not in privity
with the Guilford House defendants. In issuing a repri-
mand to the plaintiff in error, the statewide grievance
committee was performing its duty ‘‘to safeguard the
administration of justice and to protect the public from
the misconduct or unfitness of those who are members
of the legal profession.’’ (Internal quotation marks omit-
ted.) Statewide Grievance Committee v. Johnson, 108
Conn. App. 74, 79, 946 A.2d 1256, cert. denied, 288
Conn. 915, 954 A.2d 187 (2008). The Guilford House
defendants played no role in bringing the plaintiff in
error’s misconduct to the notice of the statewide griev-
ance committee, which played no role in the underlying
case in which the misconduct occurred. The Guilford
House defendants’ interest in moving for sanctions was
to recover costs and fees they had incurred due to the
plaintiff in error’s misconduct. Not only are the parties
not the same, but their interests in such proceedings
were entirely different. Therefore, there was no privity
between them. Because there was no privity, the imposi-
tion of costs upon the plaintiff in error was not barred
either by res judicata or by collateral estoppel, and thus
the court’s order imposing financial sanctions upon her
was proper.
Even if there was privity between the Guilford House
defendants and the statewide grievance committee, the
principles of res judicata and collateral estoppel could
not apply to bar the sanctions imposed by the trial court.
The trial court granted the Guilford House defendants’
motion for sanctions as part of its memorandum of
decision on April 3, 2014. Although the court did not
determine the amount of financial sanctions on that
date, it did detail the types of fees and costs that the
defendants had incurred in responding to the plaintiff
in error’s misconduct. Only after granting the motion
for sanctions did the trial court forward this matter to
the statewide grievance committee, which concluded
its investigation into the plaintiff in error’s misconduct
by issuing her a reprimand in February, 2015. Therefore,
the statewide grievance committee’s later imposition
of discipline upon the plaintiff in error could not have
precluded the trial court’s earlier imposition of sanc-
tions upon her.
The plaintiff in error also argues that the sanctions
imposed against her were not proportional to her
proven misconduct, and thus were improperly punitive.
We do not agree.
We review for abuse of discretion whether the
amount of financial sanctions imposed against a party
is proportional to its sanctionable conduct. See Usow-
ski v. Jacobson, 267 Conn. 73, 85, 836 A.2d 1167 (2003).
‘‘When reviewing claims under an abuse of discretion
standard, the unquestioned rule is that great weight is
due to the action of the trial court and every reasonable
presumption should be given in favor of its correctness
. . . . In determining whether there has been an abuse
of discretion, the ultimate issue is whether the court
could reasonably conclude as it did. . . . [T]he ques-
tion is not whether any one of us, had we been sitting
as the trial judge, would have exercised our discretion
differently. . . . Rather, our inquiry is limited to
whether the trial court’s ruling was arbitrary or unrea-
sonable.’’ (Citation omitted; internal quotation marks
omitted.) State v. Smith, 313 Conn. 325, 336, 96 A.3d
1238 (2014).
‘‘In determining the proportionality of a sanction to
a violation, we have in the past considered the severity
of the sanction imposed and the materiality of the evi-
dence sought . . . whether the violation was inadver-
tent or wilful . . . and whether the absence of the
sanction would result in prejudice to the party seeking
the sanction.’’ (Citations omitted.) Forster v. Gianopou-
lous, 105 Conn. App. 702, 711, 939 A.2d 1242 (2008).
On the basis of our review of the record, we conclude
that the court reasonably could have found that the
amount of the sanctions imposed was appropriate. The
court found, following the October 19, 2015 hearing,
that the Guilford House defendants had incurred the
following costs and attorney’s fees, all directly stem-
ming from the plaintiff in error’s misconduct during
and related to the O’Connor deposition. First, the defen-
dants incurred legal expenses while opposing an appeal
taken by the plaintiff in error from the trial court’s
April 3, 2014 decision. The court held that, although
this appeal was taken in Picard’s name, it was brought
solely to challenge the sanctions imposed upon the
plaintiff in error, and therefore, the reasonable and nec-
essary costs of Guilford House counsel in opposing the
appeal and seeking its dismissal were properly part of
the financial sanctions imposed upon the plaintiff in
error. Second, the defendants incurred fees for the
appearance of their counsel at the O’Connor deposition,
as well as travel and other related expenses.11 Third,
the defendants incurred the costs of obtaining the tran-
script of the O’Connor deposition. Fourth, the defen-
dants incurred attorney’s fees for filing motions and
responding to motions the plaintiff in error filed follow-
ing the deposition. Fifth, the defendants incurred attor-
ney’s fees for their counsel’s attendance at the hearings
before Judge Miller and Judge Dewey concerning issues
related to the deposition and the motions for sanctions.
Sixth and finally, the defendants incurred various other
fees and expenses in responding, through counsel, to
miscellaneous, related matters.
As we discussed previously in this opinion, the court
did not impose as sanctions upon the plaintiff in error
any of the costs or fees incurred in the defense of a
separate grievance brought by Picard against the Guil-
ford House defendants’ lead attorney. Despite the
defendants’ contention that it was the plaintiff in error
who wrongfully filed that grievance, the court held that
the record to support such a contention was inadequate
and that awarding such costs could improperly deter
future grievance filings against attorneys in Connecti-
cut. The court’s analysis and denial of this requested
cost further supports the reasonableness of the sanc-
tions that the court did impose upon the plaintiff in
error.
The plaintiff in error challenged as unreasonable the
amount of money and the number of lawyers that the
Guilford House defendants claimed were necessary in
responding to her misconduct, which the court
accepted in determining the amount of financial sanc-
tions to impose upon her. The trial court could have
found that the total amount of sanctions imposed was
reasonable because the issues raised through the plain-
tiff in error’s conduct were unusual, and required rapid
and substantial legal work by the defendants’ counsel.
The court also could have found that the complexity
of the legal issues raised reasonably resulted in more
of the defendants’ lawyers billing more time. The court
did not abuse its discretion in imposing the amount of
sanctions it did upon the plaintiff in error.
The writ of error is dismissed.
In this opinion the other judges concurred.
1
The writ of error was properly filed in our Supreme Court, which, pursu-
ant to Practice Book § 65-1, transferred the matter to this court.
2
The plaintiff in error served the writ of error on Judge Miller. Although
the Office of the Attorney General accepted service of the writ of error on
behalf of Judge Miller, it did not enter an appearance on his behalf or file
a brief in his defense. On appeal, the law firm of Heidell, Pittoni, Murphy &
Bach, LLP, counsel for the defendants The Guilford House, LLC and Guilford
Holding Company, LLC (Guilford House defendants) filed a brief in response
to the brief of the plaintiff in error and appeared for oral argument.
3
Dr. Sawicki was represented by separate counsel in the underlying action.
Although he filed an appearance in the writ of error, he did not file a
responding brief.
4
The record suggests that neither Judge Miller nor Judge Dewey ever
listened to the recording.
5
The court noted that the plaintiff in error knew that the conference room
she had reserved for the deposition would only be available until 3:15 p.m.,
but she did not inform opposing counsel of this time limitation until 11 a.m.
that same day.
6
Practice Book § 13-30 (c) provides in relevant part: ‘‘At any time during
the taking of the deposition, on motion of a party or of the deponent and
upon a showing that the examination is being conducted in bad faith or in
such manner as unreasonably to annoy, embarrass, or oppress the deponent
or party, the court in which the action is pending may order the officer
conducting the examination forthwith to cease taking the deposition, or
may limit the scope and manner of the taking of the deposition as provided
in Section 13-5.’’
7
Practice Book § 13-30 (b) provides in relevant part: ‘‘All objections made
at the time of the examination to the qualifications of the officer taking the
deposition, or to the manner of taking it, or to the evidence presented, or
to the conduct of any party, and any other objection to the proceedings,
shall be noted by the officer upon the deposition. . . . Every objection
raised during a deposition shall be stated succinctly and framed so as not
to suggest an answer to the deponent and, at the request of the questioning
attorney, shall include a clear statement as to any defect in form or other
basis of error or irregularity.’’
8
Practice Book § 13-27 (f) (2) provides in relevant part that ‘‘a deposition
may be recorded by videotape without prior court approval if (i) any party
desiring to videotape the deposition provides written notice of the videotap-
ing to all parties in either the notice of deposition or other notice served
in the same manner as a notice of deposition and (ii) the deposition is also
recorded stenographically.’’
9
At oral argument before this court, the plaintiff in error’s counsel clarified
that this grievance was resolved by way of a reprimand in February, 2015.
It is outside the record whether assessing the cost of attorney’s fees was
discussed at the grievance hearing.
10
The attorney’s conduct occurred prior to the adoption of the Rules of
Professional Conduct.
11
The court considered reducing the amount of the sanctions by the
percentage of testimony from the O’Connor deposition that could be useful
in future proceedings in the underlying action. After considering the plaintiff
in error’s testimony and arguments at the October, 2015 hearing, the court
concluded that there was no evidence that any part of the deposition could
be useable, and therefore did not reduce the amount of sanctions related
to the costs of the deposition.