Betty Wise v. City of New London et al. (2012)

MEMORANDUM OF DECISION DEFENDANT'S MOTION FOR SANCTIONS (# 110)

On April 12, 2011, the plaintiff, Betty Wise, filed a complaint against several defendants regarding a fall down tort claim occurring on premises located at 244 Laurel Drive in the City of New London.   The City of New London (the city) and the New London Housing Authority (the housing authority) were served at the commencement of this action.   The city filed a motion to dismiss on May 19, 2011, on the ground that the court lacked subject matter jurisdiction because the plaintiff's complaint was directed towards the housing authority, a separate legal entity from the city.

The record reveals an ambiguity and confusion about the status of the city in this litigation.   The summons lists the city in a separate line from the defendant housing authority.   It is ambiguous as to whether the summons identifies the city as a defendant or merely as an entity to be served to give notice to the housing authority.   The complaint does not contain any allegations as to the city, but rather directs its claims of negligence towards the housing authority.   Finally, the return of service filed by the marshal described the city as “the within named defendant.”   When the writ, summons, complaint and return of service was filed with the court the clerks office entered the city as a party defendant in this action.

After being advised by the city that he sued the wrong defendant, plaintiff's counsel first tried to address the issue by filing a “request to conform case initiation data entry to summons” so as to delete the city as a party to this action.   This “request to conform” was denied by the clerk on May 20, 2011.

Thereafter, the city repeatedly requested withdrawal of the action, but plaintiff's counsel never withdrew the action as to the city.   Finally, defense counsel, after attempting for several months to have plaintiff's counsel correct the pleadings, reclaimed its motion to dismiss.   Plaintiff's counsel did not file an objection to the motion, which was granted by this court on December 2, 2011.   The city then filed this motion for sanctions on January 23, 2012, pursuant to Practice Book § 10–5.   The response of plaintiff's counsel was to file a withdrawal of the action against the city, despite the fact that the court had dismissed the case as to the city six weeks earlier.   Plaintiff's counsel then filed an objection to the city's motion for sanctions on February 3, 2012, the city filed a reply on February 14, 2012 and plaintiff's counsel filed a surreply on February 15, 2012.

The city argues that the conduct of plaintiff's counsel is sanctionable because he failed to inquire as to the correct party to be sued in this action.   The city argues that its insurance carrier and counsel sent plaintiff's counsel at least ten letters requesting that the action be withdrawn as to the city, along with legal support for the city's position.   Thus, the city argues that plaintiff's counsel failed in its duty to file only true pleadings and to correct a false statement of material fact.   Plaintiff's counsel counters that the city was never intended to be a party to this action, and that he was concerned about filing a withdrawal as to the city because of potential problems with the apportionment statute.

Practice Book § 10–5 provides:  “Any allegation or denial made without reasonable cause and found untrue shall subject the party pleading the same to the payment of such reasonable expenses, to be taxed by the judicial authority, as may have been necessarily incurred by the other party by reason of such untrue pleading;  provided that no expenses for counsel fees shall be taxed exceeding $500 for any one offense.   Such expenses shall be taxed against the offending party whether that party prevails in the action or not.”  “[T]he task of determining whether sanctions should be imposed is inherently fact bound, and requires carefully circumscribed discretion to be exercised by the trial court ․ Good faith pleading must be judged in the light of all the circumstances existing at the time the pleading was filed ․ Good faith has been defined variously as [h]onesty of intention, and freedom from knowledge of circumstances which ought to put the holder upon inquiry ․ or being faithful to one's duty or obligation.”  (Citations omitted;  internal quotation marks omitted.)  Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 658, 905 A.2d 1256 (2006).

Rule 3.1 of the Rules of Professional Conduct provides, in relevant part:  “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous ․” The commentary to that section provides that an action is frivolous if the lawyer cannot make a good faith argument regarding the merits of the action or for an extension, modification or reversal of existing law.   Rule 3.3 of the Rules of Professional Conduct states that “[a] lawyer shall not knowingly ․ [m]ake a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer ․”

Plaintiff's counsel argues that it communicated with the city's insurer that “because of concerns with the apportionment statute relating to settled or released parties, filing a withdrawal could open up a complicated situation with the intended defendants, New London Housing Authority.”   Plaintiff's counsel does not explain the nature of this “complicated situation” and does not cite any authority for this proposition.   The court presumes that plaintiff's counsel is referring to General Statutes § 52–572h(n), which states, in relevant part, that “[a] release, settlement or similar agreement entered into by a claimant and a person discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides.   However, the total award of damages is reduced by the amount of the released person's percentage of negligence ․” Recently, the Connecticut Supreme Court in a lengthy discussion expressly held that an outright withdrawal of an action against a party without any other agreement is not the equivalent of a “release, settlement or similar agreement” that would fall within § 52–572h(n).  See Viera v. Cohen, 283 Conn. 412, 420–43, 927 A.2d 843 (2007).   Consequently, the concerns stated by plaintiff's counsel have little merit in this context, as Connecticut law clearly dictates that the simple withdrawal of an action against a party does not implicate the apportionment statute.¹

The city's motion and supporting documents challenge the conduct of plaintiff's counsel.   The court is mindful that attorneys must feel free to advocate vigorously on behalf of their clients.   The court is similarly aware of the “potential for chilling legitimate but difficult advocacy” and, consequently, caution must be used when sanctioning attorney conduct.   See Brunswick v. Statewide Grievance Committee, 103 Conn.App. 601, 620, 931 A.2d 319, cert. denied, 284 Conn. 929, 934 A.2d 244 (2007).   However, “the parameters of zealous advocacy are not without limit.”  State v. Morgan, 70 Conn.App. 255, 289, 797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002).

Under these circumstances, the court cannot find that plaintiff's counsel exceeded the boundaries of appropriate professional conduct.   While the paper work created by plaintiff's counsel is not a model of clarity, a fair review of that paperwork reflects, however inartful, the intention of the plaintiff to sue the housing authority rather than the city.   This inartfulness created confusion for the marshal, for the clerk and the city.   To his credit, the plaintiff attempted promptly to have the clerk's office remove the city as a party.   It is curious why, when this attempt failed, that the plaintiff did not simply file a withdrawal of the action as to the city.   Nonetheless, the plaintiff did not oppose the motion to dismiss when it was claimed for argument.   The reasons identified by the plaintiff for not withdrawing the claim against the city do not make sense to the court because the plaintiff's counsel stated that he never intended to sue the city.

Practice Book § 10–5 provides:  “Any allegation or denial made without reasonable cause and found untrue shall subject the party pleading the same to the payment of such reasonable expenses, ․” In this case the allegations of the complaint are directed to the housing authority rather than the city.

Thus, while the court can understand the frustration of the defendant, this is not a situation where counsel has made “untrue” allegations.   It was the plaintiff's claim that he never sued the city in the first place.   The plaintiff did not oppose the Motion to Dismiss.   Accordingly, the city's motion for sanctions is hereby denied.

Cosgrove, J.

FOOTNOTES

FN1. Other statutory provisions that plaintiff's counsel may be referring to include General Statutes § 52–102b (addition of defendant for purposes of apportionment), General Statutes § 52–216a (prohibiting the reading of agreements or releases to the jury) and General Statutes § 52–225a (reduction in economic damages in personal injury and wrongful death actions for collateral source payments).   The court finds none of these statutes directly applicable to the present matter..  FN1. Other statutory provisions that plaintiff's counsel may be referring to include General Statutes § 52–102b (addition of defendant for purposes of apportionment), General Statutes § 52–216a (prohibiting the reading of agreements or releases to the jury) and General Statutes § 52–225a (reduction in economic damages in personal injury and wrongful death actions for collateral source payments).   The court finds none of these statutes directly applicable to the present matter.

Cosgrove, Emmet L., J.