Edward Tuccio et al. v. Lawrence Lapine (2009)

MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT OF DISMISSAL # 131 AND MOTION FOR DEFAULT JUDGMENT# 130

I

FACTS & PROCEDURAL HISTORY

On January 16, 2008, the plaintiffs, Edward Tuccio and Tuccio Development, Inc., commenced this breach of contract claim by service of process on the defendant Lawrence Lapine.   The plaintiffs allege the following facts in their revised complaint.   On or about April 11, 2001, the parties executed a written contract in which Lapine agreed to represent the plaintiffs in the handling, settlement, commencement and prosecution or trial of any claim arising as a result of a real estate transaction which occurred on September 5, 2007, against potential defendants, Paul McNamara, Rex Gustafson, Donnelly, McNamara & Gustafson and Carl Lecher.   The written contract further provided that Lapine had the right to withdraw from the case if the investigation disclosed no liability on the part of the defendant, if the defendant was judgment proof or if he was unable to proceed because of a lack of cooperation on the part of the plaintiffs.

On April 11, 2003, Lapine breached the aforesaid written contract by unilaterally withdrawing from representation of the plaintiffs and instructing the plaintiffs to obtain other counsel, although none of the conditions of the contract permitting him to do so had occurred.   As a result, the plaintiffs suffered economic losses, consisting of the fees and expenses of obtaining new counsel.   Additionally, plaintiff Edward Tuccio suffered physical illness and emotional distress.

On May 13, 2008, Lapine commenced a counterclaim action for vexatious litigation against the plaintiffs.   Lapine alleges that Tuccio and Tuccio Development commenced a legal malpractice lawsuit against him on September 5, 2006.   The malpractice action was prosecuted for approximately fifteen months and, on the eve of trial, Tuccio and Tuccio Development unilaterally withdrew the malpractice action.

Within days of withdrawing the original malpractice action, Tuccio and Tuccio Development commenced the present action against Lapine for breach of contract.   Lapine then filed his counterclaim in this action, alleging that the malpractice action was brought against him without probable cause, with malice and terminated in his favor.   On September 21, 2009, Lapine, as counterclaimant, filed a motion for default judgment against the plaintiffs.   Lapine, as the defendant in the underlying action, also filed a motion for judgment of dismissal on September 22, 2009, against the plaintiffs in which he adopted and fully incorporated the counterclaimant's motion for default judgment.   In both motions, Lapine argues that Tuccio provided false and evasive testimony at a deposition held on August 28, 2009, which constituted a fraud upon the court and intentionally walked out of his deposition, frustrating the defendant's right to proper discovery.   On September 30, 2009, the plaintiff filed a memorandum in opposition.   On October 2, 2009, Lapine, as the counter-claimant, filed a reply in further support of his motion for default judgment.   On October 5, 2009, the plaintiffs filed a supplementary brief in opposition to motions for sanctions.   On October 13, 2009, Lapine filed a supplemental memorandum in support of motion for judgment of dismissal.

II

DISCUSSION

“Practice Book § 13-14 provides sanctions for failure to answer interrogatories, which the court may order upon motion as the ends of justice require.   These orders may vary in severity from entry of a nonsuit or default or judgment of dismissal to an award of costs of the motion, including a reasonable attorneys fee.   Decisions on the entry of such sanctions rest within the sound discretion of the trial court ․ On viewing a claim that this discretion has been abused, great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness ․ [T]he ultimate issue is whether the court could reasonably conclude as it did.”  (Citation omitted;  internal quotation marks omitted.)   Tuccio v. Garamella, 114 Conn.App. 205, 208, 969 A.2d 190 (2009).

“The factors to be considered by the court include:  (1) whether the noncompliance was caused by inability, rather than wilfulness, bad faith or other fault;  (2) whether and to what extent noncompliance caused prejudice to the other party, including the importance of the information sought to the party's case;  and (3) which sanction would, under the circumstances of the case, be an appropriate judicial response to the noncomplying party's conduct.”  Id.

The appellate courts of Connecticut have mandated that “careful attention must be paid to the prompt and orderly handling of discovery.   Trial courts should not countenance unnecessary delays in discovery and should unhesitatingly impose sanctions proportionate to the circumstances.”  Osborne v. Osborne, 2 Conn.App. 635, 637, 482 A.2d 77 (1984), superceded by statute on other grounds as stated in Johnson v. Atlantic Health Services, P.C., 83 Conn.App. 268, 849 A.2d 853 (2004).  “[A] trial court's order of sanctions for the violation of a discovery order must be reasonably clear, the record must establish that the order was violated and the sanction imposed must be proportional to the violation.   Where the ultimate sanction of dismissal is involved, [o]ur practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure ․ Therefore, although dismissal of an action is not an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court's authority ․ the court should be reluctant to employ the sanction of dismissal except as a last resort ․ [T]he sanction of dismissal should be imposed only ․ where it would be the only reasonable remedy available to vindicate the legitimate interests of the other party and the court.”  (Citations omitted;  internal quotation marks omitted.)  Usowski v. Jacobson, 267 Conn. 73, 91-92, 836 A.2d 1167 (2003).

“Suffice it to observe ․ that if the disobedient party's refusal to testify is intentional, if a sufficient need for the information requested is shown by the opposing party, and if it does not appear that the disobedient party, having failed to comply with the order embodied in the rules, is inclined to change his position, then dismissal is an appropriate sanction.   In such situations dismissal serves not only to penalize those whose conduct warrants such a sanction but also to deter those who might be tempted to such conduct in the absence of such deterrent.”  Pavlinko v. Yale, 192 Conn. 138, 145, 470 A.2d 246 (1984).

In the present case, Lapine states in his supplemental memorandum supporting his motion for judgment of dismissal that Tuccio “made a mockery of the deposition.”   He provided “evasive and false testimony” to most of the questions asked and “abruptly walked out in the middle of the deposition without the consent of counsel.”   Tuccio answered “I don't recall” to such questions as “[d]o you live with your wife, Kimberly?” and “[d]id you shower this morning?”   According to Lapine's attorney, David Rubin, the deposition lasted an hour and ten minutes, after which Tuccio walked out.   Attorney Rubin states that the plaintiff took three breaks throughout the hour and ten minute time span.   At the time that he abandoned the deposition, Tuccio was informed by Attorney Rubin that there was no consent or agreement to terminate or postpone the deposition, and that sanctions against him would be sought.   Tuccio's response to Attorney Rubin's statement that he would move for sanctions was “that's fine, thank you.”   Deposition, p. 51.   Furthermore, court records indicate that a motion to compel responses to interrogatories and requests for production had previously been granted in order to get Tuccio to comply with the defense's discovery requests.

In his opposition brief to the motion for default judgment, the plaintiff states that “the parties stipulated that Mr. Tuccio would have thirty days from his receipt of the transcript to make any needed changes or corrections and that the transcript would not be final until he had exercised that right.   The transcript was mailed to counsel for Tuccio on September 10, 2009.   At a minimum, therefore, Tuccio ha[d] until October 12, 2009, to correct any errors or misstatements.   The defendant's motions are premature at best ․ Tuccio should be afforded a reasonable opportunity to be deposed further before the issue of sanctions is even considered.”   In his supplementary brief in opposition, the plaintiff offers corrections to his testimony through an errata sheet.   Furthermore, the plaintiff states in his motion that “he was suffering, and was known by defense counsel to be suffering, from a severe medical disability which affected his ability to understand, to remember, and to respond.”

The court finds the plaintiff's refusal to respond to the questions at the deposition was intentional.   Deposition transcripts state that Tuccio responded with “I don't recall” to such questions as:  “[d]o you and [your wife] have children?”;  “[w]ho do you live with?”;  “[d]o you drive?”   Additionally, Tuccio stated in his deposition that he had seen the defendant before, but responded by saying “I don't recall” when questioned about the context in which he had seen the defendant.   Tuccio took several breaks in questioning to speak with his lawyer and at no time was it reported that he suffered from any condition, illness or ailment that prevented him from remembering any of the information sought by Lapine's counsel.   Counsel for Tuccio commented on the record, “[w]hy don't we just ask him about the lawsuit and he might answer your questions.”   According to the deposition transcript, the deposition ended when Tuccio stood up and walked out of the deposition, claiming that he had to attend a meeting involving his children, of whom he denied knowledge minutes earlier while he was deposed under oath.

Tuccio's noncompliance caused prejudice to the defendant.   Tuccio is the plaintiff in this breach of contract claim against the defendant.   His noncompliance with discovery and evasive testimony hinders the defendant's ability to formulate a proper defense to the claim.  “A plaintiff cannot use one hand to seek affirmative relief in court and with the other lower an iron curtain of silence against otherwise pertinent and proper questions which may have a bearing upon his right to maintain his action.”  Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 146-47, 470 A.2d 246 (1984).   In a supplementary opposition brief, Tuccio attached corrections to his deposition testimony in the form of an errata sheet.   While the corrected responses appear to be truthful and cooperative with the discovery process, the issue of Tuccio's conduct during the August 28, 2009 deposition remains.   Tuccio's use of the errata sheet to correct his answers is improper, as errata sheets are intended to be used “to correct mistakes made in the transcription of the reporter's notes which the witness disagrees with or claims are mistakes in transcription.”   R.A. Villanova & Co., Inc. v. Chatfield, Superior Court, judicial district of Waterbury, Docket No. CV 040182702 (October 11, 2007, Gormley, J.T.R.).   However, the answers provided by Tuccio in the errata sheet indicate that Tuccio is inclined to change his position of disobedience and comply with the discovery process.

After careful consideration, the court concludes that dismissal of the action is a disproportionate remedy under the circumstances of this case.   The court orders the plaintiff to reimburse Lapine with reasonable fees and costs in connection with the aborted August 28, 2009 deposition and with preparation of the present motion.   Specifically, the plaintiff is to pay reasonable attorneys fees incurred by the defendant in preparation for the deposition, the cost of the August 28, 2009 deposition and the cost of preparing the motions for dismissal and default judgment.   Counsel for the defendant shall file an affidavit for attorneys fees and costs within ten days of the issuance of this decision.   The plaintiff shall make payments thirty days thereafter.

Marano, J.

Marano, Richard M., J.