Costello v. Goldstein & Peck, P.C. , 187 Conn. App. 486 ( 2019 )

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JAMES T. COSTELLO ET AL. v. GOLDSTEIN AND
PECK, P.C., ET AL.
(AC 40465)
DiPentima C. J., and Lavine and Beach, Js.
Syllabus
The plaintiffs, C and S, sought to recover damages from the defendant law
firm and two of its attorneys for, inter alia, legal malpractice in connec-
tion with their representation of the plaintiffs in two prior actions. S
previously had retained the defendants to represent her when her former
attorney brought an action against her to collect legal fees, and C pre-
viously had retained the defendants to represent him in an unrelated
dispute concerning his dealings with a condominium association. C and
S commenced the present legal malpractice action and filed a single
complaint against the defendants alleging claims related to the two
distinct matters. The trial court granted the defendants’ motion to strike
the complaint for improper joinder and rendered judgment in favor of
the defendants, from which the plaintiffs appealed to this court. Held
that the trial court properly granted the motion to strike for improper
joinder, as the plaintiffs’ action concerned two separate and distinct
transactions that were independent of each other; although the two
prior matters alleged in the complaint shared common defendants and
background information regarding the defendants and their motivations,
the question of whether the defendants committed legal malpractice
involved the defendants’ conduct regarding the individual transactions
and separate evidence was required for each transaction, each plaintiff
had a separate contract with the defendants for their representation,
as well as a separate and distinct legal claim, the plaintiffs were neither
necessary nor indispensable parties in the other’s case, as each case
could be fully and fairly resolved without the other being a party, and
the doctrines of collateral estoppel and res judicata would not bar
subsequent litigation by one of the plaintiffs once removed from the
present case; moreover, the trial court did not err in denying the plain-
tiffs’ motion for costs arising out of a prior appeal they had brought in
which they prevailed in the Supreme Court, as the relevant statute (§ 52-
243) authorizes the award of litigation costs only if there had been a
verdict in the plaintiffs’ favor in the trial court.
Argued September 17, 2018–officially released January 29, 2019
Procedural History
Action to recover damages for, inter alia, legal mal-
practice, and for other relief, brought to the Superior
Court in the judicial district of Fairfield, where the
court, Sommer, J., granted the defendants’ motion to
dismiss and rendered judgment thereon, from which
the plaintiffs appealed to this court, which affirmed the
trial court’s judgment; thereafter, the plaintiffs, on the
granting of certification, appealed to the Supreme
Court, which reversed the judgment of this court and
remanded the case to this court with direction to
remand the case to the trial court with direction to deny
the defendants’ motion to dismiss; subsequently, the
court, Kamp, J., denied in part the plaintiffs’ motion
for costs and granted the defendants’ motion to strike
the second amended complaint; thereafter, the court,
Kamp, J., granted the defendants’ motion for judgment
and rendered judgment in favor of the defendants, from
which the plaintiffs appealed to this court. Affirmed.
James T. Costello, self-represented, with whom, on
the brief, was Dorothy Smulley Costello, self-repre-
sented, the appellants (plaintiffs).
Nadine M. Pare, with whom, on the brief, was Car-
mine Annunziata, for the appellees (defendants).
Opinion
BEACH, J. The plaintiffs, James T. Costello and Doro-
thy Smulley Costello,1 appeal from the judgment of the
trial court,2 rendered subsequent to its granting of the
motion to strike the second amended complaint filed
by the defendants, Goldstein & Peck, P.C. (law firm),
William J. Kupinse, Jr., and Andrew M. McPherson.3 The
plaintiffs claim that the court (1) improperly granted
the defendants’ motion to strike, (2) failed to consider
alternatives to striking the complaint, and (3) improp-
erly denied the plaintiffs’ claim for costs pursuant to
General Statutes § 52-243. We affirm the judgment of
the trial court.
The operative complaint alleged in detail transactions
between the plaintiffs and the defendants. The com-
plaint first alleged various facts regarding the law firm.
It then described, under separate headings, a transac-
tion regarding Smulley and her former attorney, Juda
Epstein (Epstein matter), and a transaction regarding
Costello and a condominium association (Lynwood
matter).
The plaintiffs alleged the following facts regarding
the Epstein matter. Smulley retained the defendants to
represent her on June 16, 2008, after Epstein, her former
attorney, brought an action against her to collect legal
fees. Kupinse filed defenses and a counterclaim, and
Epstein filed a motion for summary judgment. Mean-
while, at some point prior to August 6, 2009, Kupinse
and Epstein allegedly entered into a business arrange-
ment wherein Epstein would refer new clients to the
defendants in exchange for a fee. The plaintiffs alleged
that, as a result of this agreement, the defendants set
Smulley’s matter aside in order to pursue more lucrative
matters, thus causing a nine month delay in opposing
Epstein’s motion for summary judgment. The plaintiffs
further alleged that the defendants repeatedly advised
her to exchange mutual withdrawals and releases with
Epstein and delayed the Epstein matter without Smul-
ley’s knowledge or approval by filing continuances and
failing to object to Epstein’s motion for a continuance
until prompted by Smulley to do so. Smulley’s special
defenses were also amended at least five times, alleg-
edly due to the defendants’ errors.
The plaintiffs further alleged that in February, 2010,
the defendants charged Smulley for preparation for a
trial that did not take place. In April, 2010, Kupinse
demanded approximately $15,000 in order to continue
his representation, as well as $3,250 for expert witness
fees. Although Smulley paid the expert’s fees, she later
learned that Kupinse failed to forward her payment
to the expert, and the expert therefore terminated his
engagement. In May, 2010, Kupinse demanded $25,000
in order to continue his representation. Subsequently,
Kupinse filed a motion to withdraw as Smulley’s coun-
sel, which was granted in June, 2010. Three months after
Kupinse withdrew from the Epstein matter, Kupinse
attempted to charge Smulley for unauthorized meet-
ings, including meetings with an attorney who was con-
sulted after Kupinse’s withdrawal, the expert who
withdrew from the Epstein matter, and a client whom
Epstein had referred to Kupinse. The plaintiff alleged
various conflicts of interest on the part of Kupinse.
The plaintiffs made the following allegations concern-
ing the Lynwood matter. Costello retained the defen-
dants on November 18, 2008, to represent him in a
dispute concerning funds associated with the Lynwood
Condominium Association (Lynwood), and a receiver
was appointed several months later. Costello eventually
was appointed temporary receiver, but Kupinse alleg-
edly delayed the appointment by failing to file the appro-
priate motion for nearly five months. When unit owners
challenged Costello’s authority to act as substitute
receiver and accused him of misappropriating funds,
Kupinse allegedly failed to file any response in Cos-
tello’s defense. After a court hearing in which Costello
agreed to provide certain documents to Lynwood’s
counsel, Costello sent those documents to Kupinse,
but Kupinse allegedly failed to forward the documents
properly. Additionally, Costello’s motion for reimburse-
ment of attorney’s fees failed ‘‘because Kupinse failed
to appear to reaffirm his motion in support thereof.’’
Finally, at the time of his withdrawal from the Lynwood
matter, Kupinse sent Costello a bill for several hundred
dollars for time spent with Lynwood’s counsel, though
Kupinse provided no explanation for the charges. Cos-
tello further alleged various incidents in which Kupinse
failed to act diligently.
The plaintiffs’ operative complaint also alleged the
following facts concerning their relationship and shared
experiences with the defendants. The plaintiffs, who
are married to each other, each participated fully in the
other’s matter and shared the payment of legal fees
charged by the defendants. The defendants failed to
develop a strategic plan for either plaintiff. Instead, they
filed claims that were easily defeated and that they later
withdrew. The conflict in the Epstein matter ‘‘spilled
over’’ into the defendants’ representation of Costello in
the Lynwood matter, and the behavior of the defendants
was similar in both cases. The operative complaint
alleged legal malpractice against Kupinse and McPher-
son, and as to both sets of transactions they alleged
unfair trade practices in violation of the Connecticut
Unfair Trade Practices Act (CUTPA), General Statutes
42-110a et seq., against the law firm. The defendants
moved to strike the complaint for improper joinder.
The trial court held that, although both plaintiffs
relied broadly on a theory of inadequate legal represen-
tation, the plaintiffs’ ‘‘reasons for their respective dissat-
isfaction, and indeed the nature of the representations,
diverge[d] sharply.’’ The court noted, that ‘‘[w]here
Smulley’s allegations sound alternatively in intentional
and neglectful misconduct, Costello appears to allege
a more general sort of incompetent representation.’’
The court stated that the plaintiffs’ pleadings did not
demonstrate a common scheme sufficient to satisfy the
requirement that each plaintiff’s right of relief arise out
of the same transaction or series of transactions in
order to qualify for permissive joinder. Accordingly, the
court granted the defendants’ motion to strike. The
plaintiffs claim that the court erred in granting the
motion to strike.
The plaintiffs also claim that the court erred in deny-
ing costs arising from a prior appeal by the plaintiffs
pursuant to § 52-243. The basis for the prior appeal is
as follows. The trial court previously had granted the
defendants’ motion to dismiss the complaint on the
ground that the writ of summons had not been accompa-
nied by either a third party recognizance4 or certifica-
tion of the plaintiffs’ financial responsibility, as required
by the Practice Book and by statute. Following summary
affirmance by this court, our Supreme Court reversed
and remanded for further proceedings. See Costello v.
Goldstein & Peck, P.C., 321 Conn. 244, 247–48, 259, 137
A.3d 748 (2016).
Following the remand, the plaintiffs filed a motion
for litigation costs arising from the appeal pursuant
to General Statutes §§ 52-2435 and 52-257 (d)6, seeking
$623.63. The court denied costs sought pursuant to § 52-
243, because there had not been a verdict, but granted
costs under § 52-257 (d) in the amount of $100. This
appeal followed. The plaintiffs assert that the court
erred in finding that joinder was improper and that the
court improperly denied costs under § 52-243.
‘‘We begin our analysis by setting forth the applicable
standard of review. A motion to strike challenges the
legal sufficiency of a pleading, and, consequently,
requires no factual findings by the trial court. As a result,
our review of the court’s ruling is plenary. . . . We take
the facts to be those alleged in the complaint that has
been stricken and we construe the complaint in the
manner most favorable to sustaining its legal suffi-
ciency. . . . It is fundamental that in determining the
sufficiency of a complaint challenged by a defendant’s
motion to strike, all well-pleaded facts and those facts
necessarily implied from the allegations are taken as
admitted.’’ (Internal quotation marks omitted.) McCart
v. Shelton, 81 Conn. App. 58, 60, 837 A.2d 872 (2004).
‘‘All persons may be joined in one action as plaintiffs
in whom any right of relief in respect to or arising out
of the same transaction or series of transactions is
alleged to exist either jointly or severally when, if such
persons brought separate actions, any common ques-
tion of law or fact would arise . . . .’’ (Emphasis
added.) Practice Book § 9-4. ‘‘A motion to strike shall
be used whenever any party wishes to contest . . . the
joining of two or more causes of action which cannot
properly be united in one complaint, whether the same
be stated in one or more counts . . . .’’ Practice Book
§ 10-39 (a) (4).
The plaintiffs argue that the court improperly granted
the defendants’ motion to strike the plaintiffs’ second
amended complaint on the basis of improper joinder.
We disagree, because the plaintiffs’ underlying action
concerns two separate and distinct transactions: the
Epstein matter and the Lynwood matter. As recited
previously, the Epstein matter was litigation between
Smulley and her prior attorney, which arose initially
from a fee dispute, whereas the Lynwood matter
involved Costello’s relationship and dealings with a con-
dominium association.
It is useful to compare the complaint in this case
with that in McCart, in which seventy-three plaintiffs
claimed that their assessments for the installation of
sewers had been excessive. McCart v. Shelton, supra,
81 Conn. App. 59–60. The complaint alleged that the
defendant city and its sewer authority had assessed
each property for the benefit conferred by the construc-
tion of a sewer and used a common method of valuation;
there was, thus, a set of common facts. Id., 60. The ‘‘real
question’’ of the complaint, however, was ‘‘whether,
in the case of each individual plaintiff, the method of
assessment was correctly applied under the particular
facts to reach a proper result.’’ Id., 62. This court held
that the individual differences in the properties were
paramount. When the matters were tried, it would be
necessary for each plaintiff to provide ‘‘individual evi-
dence.’’ Id.
As in McCart, the complaint in the present case
alleges discrete transactions that are not dependent on
the other. The transactions share common defendants,
and the background information regarding the defen-
dants and their alleged motivations are relevant to both
transactions. But, as in McCart, the ‘‘real question’’
involves the conduct regarding each transaction, and
separate evidence is required for each. The overlap
is, as in McCart, tangential and, therefore, joinder is
not proper.
The inability to meet the same transaction test is
dispositive of the plaintiffs’ claims. We nonetheless
briefly address the plaintiffs’ objections to the applica-
tion of the rule in this case. The plaintiffs claim that
they are ‘‘necessary parties in privity’’ and therefore
joinder is required. We disagree. ‘‘Necessary parties
. . . have been described as [p]ersons having an inter-
est in the controversy, and who ought to be made par-
ties, in order that the court may act on that rule which
requires it to decide on, and finally determine the entire
controversy, and do complete justice, by adjusting all
the rights involved in it. . . . [B]ut if their interests are
separable from those of the parties before the court,
so that the court can proceed to a decree, and do com-
plete and final justice, without affecting other persons
not before the court, the latter are not indispensable
parties.’’ (Internal quotation marks omitted.) Sturman
v. Socha, 191 Conn. 1, 6–7, 463 A.2d 527 (1983). The
plaintiffs are neither necessary nor indispensable par-
ties7 in the other’s case. Each plaintiff’s case can be
fully and fairly resolved without the other being a party.
Each of the plaintiffs had a separate and distinct legal
claim and the result of one would not necessarily govern
the result of the other.
Next, the plaintiffs assert that there was only a single
contract applicable to both plaintiffs during the time
period in question and therefore joinder was proper.
The plaintiffs claim that because the defendants alleg-
edly agreed to represent Costello under the same ‘‘terms
and conditions’’ that governed their representation of
Smulley, there was only one contract. The fact that two
contracts may contain the same terms and conditions,
however, does not necessarily mean that the two con-
tracts are a single contract. The pleadings allege two
distinct agreements, one for the representation of Smul-
ley and the other, months later, for the representation
of Costello.
The plaintiffs next assert that if, as the trial court
instructed, one plaintiff were to remain alone in this
action and the other were to bring a separate action,
the doctrines of res judicata and collateral estoppel
would bar subsequent litigation. We disagree. ‘‘The doc-
trine of res judicata holds that an existing final judgment
rendered [on] the merits without fraud or collusion, by
a court of competent jurisdiction, is conclusive of
causes of action and of facts or issues thereby litigated
as to the parties and their privies in all other actions
in the same or any other judicial tribunal of concurrent
jurisdiction.’’ Wellswood Columbia, LLC v. Hebron, 327
Conn. 53, 65, 171 A.3d 409 (2017). A motion to strike
for improper joinder is not a determination on the mer-
its and therefore res judicata does not apply. See, e.g.,
Bank of New York Mellon v. Mauro, 177 Conn. App.
295, 320, 172 A.3d 303 (2017) (noting in context of coun-
terclaims that ‘‘where a court determines that the coun-
terclaims at issue fail the transaction test of [Practice
Book] § 10-10, the appropriate remedy is not a final
judgment on the merits of those counterclaims, but
rather a judgment dismissing those counterclaims on
the ground of improper joinder with the plaintiff’s pri-
mary action, without prejudice to the defendants’ right
to replead that claim, unless it is otherwise barred,
in a separate action’’); see also Inovejas v. Dufault,
Superior Court, judicial district of New Britain, Docket
No. CV-XX-XXXXXXX-S (March 13, 2000) (26 Conn. L. Rptr.
395) (‘‘The court’s granting of the motion to strike . . .
against [the plaintiffs] was . . . not upon the basis that
the plaintiff had failed to state a legally sufficient cause
of action, which necessarily tests the legal merits of
the [plaintiffs’] claim[s], but upon the strictly procedural
basis that the plaintiff had improperly joined two insuffi-
ciently related causes of action in one complaint, which
in no way tested the merits of the [plaintiffs’] claim[s].
Accordingly res judicata does not apply.’’).
Similarly, collateral estoppel would not bar subse-
quent litigation in the present circumstances. ‘‘[C]ollat-
eral estoppel . . . prohibits the relitigation of an issue
when that issue has been actually litigated and necessar-
ily determined in a prior action between the same par-
ties or those in privity with them upon a different claim.’’
Powell v. Infinity Ins. Co., 282 Conn. 594, 600, 922
A.2d 1073 (2007). An issue is actually litigated when
‘‘properly raised, by the pleadings or otherwise, and is
submitted for determination, and is determined . . . .
An issue may be submitted and determined on a motion
to dismiss for failure to state a claim, a motion for
judgment on the pleadings, a motion for summary judg-
ment . . . a motion for a directed verdict, or their
equivalents, as well as on a judgment entered on a
verdict.’’ 1 Restatement (Second), Judgments § 27, com-
ment (d), p. 255 (1982). The court’s ruling that is the
subject of this appeal did not determine any substantive
issue and, thus, would not serve to bar subsequent
determination.8
The plaintiffs also assert that the trial court ‘‘failed
to consider alternatives to strike on misjoinder.’’ To
support this argument, plaintiffs cite Practice Book
§ 15-29 and claim that the trial court should have bifur-
cated their trial instead of granting the motion to strike.
This argument is without merit. ‘‘The exclusive remedy
for misjoinder of parties is by motion to strike.’’ Zanoni
v. Hudon, 42 Conn. App. 70, 73, 678 A.2d 12 (1996); see
also Practice Book § 11-3. Upon finding that joinder
was improper, the trial court had no alternatives to
consider.10
Finally, the plaintiffs contend that the trial court erred
in denying their motion for costs, pursuant to § 52-243,
arising from their previous appeal in this action, on
which they prevailed in our Supreme Court. The plain-
tiffs claimed that they incurred substantial costs in the
course of their ultimately successful appeal from the
trial court’s prior dismissal of the action on the ground
of improper recognizance. The court denied the motion
for costs pursuant to § 52-243 because there had ‘‘been
no verdict on any issue joined in favor of the plaintiff,’’
as required for the recovery of costs pursuant to that
statute. Section 52-243 provides: ‘‘If a verdict is found
on any issue joined in an action in favor of the plaintiff,
costs shall be allowed to him, though on some other
issue the defendant should be entitled to judgment,
unless the court which tried the issue is of the opinion
that the defendant had probable cause to plead the
matter found against him.’’
The plaintiffs argue that the language of § 52-243 does
not define the term ‘‘verdict,’’ and that a dictionary
definition broadly equating ‘‘verdict’’ with any decision
or result applies. We disagree. The statutory language
clearly establishes that the statute in issue provides for
costs only after verdicts in the trial court. Although the
plaintiffs’ broad definition may be correct in common
parlance, a ‘‘verdict’’ in the legal context is defined as
‘‘[a] jury’s finding or decision on the factual issues of
a case [or] . . . in a nonjury trial, a judge’s resolution
of the issues of a case.’’ Black’s Law Dictonary (7th Ed.
1999); see also Gionfriddo v. Avis Rent A Car System,
Inc., 192 Conn. 301, 306, 472 A.2d 316 (1984) (citing
§ 52-243 to show that legislature intended ‘‘verdict’’ to
include judgments rendered after court trials). Further,
§ 52-243 on its face addresses the issue of whether the
plaintiff may recover costs after prevailing on some but
not all of the issues raised.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Hereafter, Costello and Smulley Costello will be referred to collectively
as the plaintiffs, and individually by name, where appropriate. Smulley Cos-
tello will be referred to as Smulley.
2
After the court granted the motion to strike, the plaintiffs did not plead
over. The defendants then filed a motion for judgment, which the court
granted.
3
Hereafter, Kupinse, McPherson, and the law firm will be referred to
collectively as the defendants, and individually by name, where appropriate.
Kupinse and McPherson were attorneys employed by the law firm.
4
‘‘A recognizance is an obligation acknowledged before some court for
a certain sum, with condition that the plaintiff shall prosecute a suit pending
in court, or for the prosecution of an appeal. . . . . A recognizance is in effect
a bond as to its obligation.’’ (Internal quotation marks omitted.) Costello v.
Goldstein & Peck, P.C., 321 Conn. 244, 247 n.1, 137 A.3d 748 (2016), citing
Palmer v. Des Reis, 136 Conn. 232, 233, 70 A.2d 141 (1949).
5
General Statute § 52-243 provides: ‘‘If a verdict is found on any issue
joined in an action in favor of the plaintiff, costs shall be allowed to him,
though on some other issue the defendant should be entitled to judgment,
unless the court which tried the issue is of the opinion that the defendant
had probable cause to plead the matter found against him.’’
6
General Statutes § 52-257 (d) provides: ‘‘The following sums may be
allowed to the prevailing party in causes on appeal, in the discretion of the
court: (1) For all proceedings, one hundred dollars; (2) for expenses actually
incurred in printing or photoduplicating copies of briefs, a sum not exceeding
two hundred dollars; and (3) to the plaintiff in error, plaintiff in a cause
reserved, or appellant, as the case may be, the record fee, provided judgment
shall be rendered in his favor. Such costs in the Superior Court in appealed
causes and in the Supreme Court or Appellate Court shall be in the discretion
of the court on reservation of a cause for advice, or when a new trial
is granted.’’
7
We note that there is a somewhat archaic distinction between ‘‘neces-
sary’’ and ‘‘indispensable’’ parties; see Sturman v. Socha, supra, 191 Conn.
6–7; but the distinction does not make a difference in the present case.
8
Similarly, the transactions are separate and distinct, as discussed pre-
viously in this opinion, such that neither claim would be barred on the
ground of privity. See Wheeler v. Beachcroft, LLC, 320 Conn. 146, 167, 129
A.3d 677 (2016) (‘‘[p]rivity as used in the context of res judicata or collateral
estoppel, does not embrace the relationships between persons or entities,
but rather it deals with a person’s relationship to the subject matter of the
litigation’’ [internal quotation marks omitted]).
9
Practice Book § 15-2 provides: ‘‘The judicial authority may, upon motion,
for good cause shown, order a separate trial between any parties.’’
10
The plaintiffs also assert that they were denied due process rights when
the trial court granted the motion to strike. The plaintiffs, however, had a
full and fair opportunity to be heard on the matter and, as previously stated,
were instructed that both plaintiffs were able to continue their actions sepa-
rately.