AJJ LLP v. Herns Jean–Charles et ux. (2012)

MEMORANDUM OF DECISION RE MOTION FOR ARTICULATION AND CLARIFICATION # 359

INTRODUCTION

The Plaintiff, AJJ Enterprises, LLP filed a motion entitled articulation and clarification which requests that the Court file an articulation of the orders entered on March 15, 2012.   The defendant has filed an objection to the motion dated April 6, 2012.   The matter was brought to the attention of the Court on April 9, 2012 by the defendant and the parties requested argument concerning the motion.   On April 10, 2012 the court conducted a telephone conference with counsel in order to provide argument in accordance with the request of plaintiff's counsel.   Attorney Frank Madugno was counsel for the plaintiff and Attorney Peter Ventre for the defendant.   Counsel for the plaintiff requested that the court re-schedule argument because the motion was submitted by his co-counsel Attorney Anthony Madugno who was ill and he did not have sufficient time to prepare.   The court accomodated both counsel and rescheduled quickly because part of the discovery motions involved the April 10 and April 12 depositions of Anthony Modugno and Frank Modugno.   As a result of the request by Attorney Frank Madugno the court continued argument on the motion until April 12, 2012 at 9:30 a.m. Counsel requested another continuance because of a morning commitment and the court re-scheduled the argument until 3 p.m. on April 12, 2012.   Counsel appeared and argued.¹

DISCUSSION

The plaintiff's motion for articulation and clarification fails to cite any Practice Book section or any law in support of such a request.   The defendants argue that such a request is not supported by the Practice Book or any other authority.   The Practice Book § 66–5 provides that in an appeal, “A motion seeking corrections in the transcript or the trial court record or seeking an articulation or further articulation of the decision of the trial court shall be called a motion for rectification or a motion for articulation, whichever is applicable.   Any motion filed pursuant to this section shall state with particularity the relief sought.”   In following the procedure for this appellate motion the Practice Book further provides:  “The appellate clerk shall forward the motion for rectification or articulation and the opposition, if any, to the trial judge who decided, or presided over, the subject matter of the motion for rectification or articulation for a decision on the motion.   If any party requests it and it is deemed necessary by the trial court, the trial court shall hold a hearing at which arguments may be heard, evidence taken or a stipulation of counsel received and approved.   The trial court may make such corrections or additions as are necessary for the proper presentation of questions reserved.   The trial judge shall file the decision on the motion with the appellate clerk.”

There is no provision in the Practice Book for a motion for articulation to be filed in a case that has not been appealed.  P.B. § 60–5, 63–1, 66–5 and 66–7.  “There is no authority for Motion for Articulation at the trial level.”   Wolak v. Hair Club, Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. 359140 (October 24, 1995, Licari, J.) (1995 Conn.Super LEXIS 2968);  McLaughlin v. McLaughlin, Superior Court, judicial district at Hartford, Docket Number FA 96 0713773 (January 21, 1997, Gruendel, J.) (1999 Conn.Super. LEXIS 200).

During the course of argument, the court requested authority from the plaintiff in support of the motion for articulation.   Counsel did not provide any authority and referred to the ability to file a motion for order of the court which is discretionary.   The court notes that such a motion has not been filed and the only motion before it is the motion for articulation and clarification.   Counsel for the plaintiff argued the motion and the basis but did not address the issue raised by the court that the present motion is not correctly filed in accordance with the Practice Book.

The instant motion addresses discovery issues which are neither on appeal or are appealable because of timeliness and lack of a final judgment.   Therefore, there is no basis for which the court would provide an articulation to the plaintiff regarding the orders of March 14, 2012 and March 15, 2012.²  Therefore, the motion to articulate is denied.

However, the court even after determining that there is no authority for such a motion once again directs the parties to the argument and discussion before the court as to the discovery motions.   During the course of argument on the motion for articulation, counsel continually represented that he was not familiar with the court proceedings yet he made no attempt to obtain the transcript or review notes that may provide a very detailed analysis of the court's orders.   In particular, as to the areas set forth by the plaintiff in its motion, the court transcript would appropriately provide the plaintiff with the basis of the court's ruling.   The court will not address the plaintiff's requests that are argumentative and request the court to compare one ruling with other rulings by the court as to depositions.   In particular, counsel continued to argue that he did not understand the basis of the decision regarding the Bank One deposition and counsel argued that the law disfavors or prohibits a deposition of counsel.   Neither of these propositions and arguments by counsel are factually or legally correct.   In fact, the analysis by counsel was reargument and not articulation.   The court referred counsel to the extensive argument and inquiry by the court regarding the depositions.   Counsel was not aware of the argument before the court on March 14, 2012 but proceeded to argue again the same issues.

“The granting or denial of a discovery request rests in the sound discretion of the court.”  Standard Tallow Corporation v. Jowdry, 190 Conn. 48, 57, 459 A.2d 503 (1983).

The court denied the deposition of Bank One which is the trustee and not the beneficiary owners of the property or a corporation that made any decisions, has additional documents, or entered into conversations concerning the legal action based upon the argument and disclosures on March 14, 2012.³  The court indicated to counsel that without a relevant inquiry, the deposition would be a fishing expedition and harassment.   The plaintiff did not appear to be aware that there is also a motion to substitute for Bank One which was relevant to the argument on March 14, 2012.

Additionally, the original arguments concerning the notice of depositions for Frank and Anthony Modugno were quite extensive.   The plaintiff's objection to the deposition was that it would interfere with the attorney client privilege.   The plaintiff argued on April 12, 2012 that it was “unfair” for the court to order the depositions and that his understanding of the law is that depositions of attorney in cases are not permitted because of the attorney client privilege.   Counsel did not provide any legal support in the motion or during the course of argument that would support this position.   However, the court is cognizant of the plaintiff's concern and the law that permits depositions of attorneys in various circumstances.  “It is clear that an attorney may be deposed ․ in any action on matters not confidential or privileged character.”  Loomis v. Norman Printers Supply Co., 81 Conn. 343, 71 A. 358 (1908), PAC v. Lynch, 11 CLT No.1 p. 9 (July 24, 1984, Missal, J. State Trial Referee), Emerick v. Moraes, Superior Court, judicial district of Hartford, Docket No. 31 48 98 (January 3, 1992, Walsh, J.).   The defendant during the original argument on March 14, 2012 provided to the court a history of the litigation and bankruptcy action after which there was a question as to whether a company, JP Management LLC, acquired an interest in the property and whether Frank Modugno and the law firm in some way managed, controlled or was a principal in the company.   The defendant argued that the company has claimed a position by foreclosing their own client and acting as a debt collector.   The defendant contends that the deponents have sued their own client on the guarantees.   The plaintiff has denied the claim but defendant also argued that filings in the Secretary of State's office prove otherwise.   The court has made no finding as to whether the information is correct but the inquiry is relevant to the action.   In order to address solely this issue, the deposition of Frank and Anthony Modugno was limited by the court to this inquiry and the limits were very clear on the record not to infringe upon attorney client privilege.   This decision by the court is very similar to the case of Sarfaty v. PNN Enterprises, Inc., Superior Court, judicial district of New Haven, Docket No. CV 02 02802155 (April 19, 2004, Tanzer, J.), where the court permitted the deposition of counsel with the similar limited instructions concerning attorney-client privilege not waived and the “deposition questions are not to delve into privileged areas.”

The plaintiff has failed to indicate any basis for the articulation or clarification of the March 14, 2012 and March 15, 2012 decisions and the transcript of the argument as well as the law adequately provides the basis for the court's rulings on the discovery issues.

THE COURT

Brazzel–Massaro, J.

FOOTNOTES

FN1. It should be noted that during the course of the April 10, 2012 conference the court was alerted to two other motions that required argument, that is, a motion for continuance and objections to the document requests provided to counsel for the April 10 and April 12, 2012 depositions.   The court agreed to hear argument on these motions on April 12, 2012 but continued the arguments because of a time restraint of defendants counsel..  FN1. It should be noted that during the course of the April 10, 2012 conference the court was alerted to two other motions that required argument, that is, a motion for continuance and objections to the document requests provided to counsel for the April 10 and April 12, 2012 depositions.   The court agreed to hear argument on these motions on April 12, 2012 but continued the arguments because of a time restraint of defendants counsel.

FN2. During the argument on March 14, 2012, the court entered orders and decisions on the record on some on the motions before it including a number of the depositions such as the deposition of Mr. Jacobson, who was ill, Attorney Shipp, who had agreed to a deposition, and the limited depositions of Frank and Anthony Modugno..  FN2. During the argument on March 14, 2012, the court entered orders and decisions on the record on some on the motions before it including a number of the depositions such as the deposition of Mr. Jacobson, who was ill, Attorney Shipp, who had agreed to a deposition, and the limited depositions of Frank and Anthony Modugno.

FN3. During argument, the court specifically requested from counsel the purpose of the deposition and was made aware that the inquiry from plaintiff's counsel involved legal questions which cannot be answered and that the documents and questions regarding the factual issues have been answered by the representative for the servicer, Mr. Blanchard.   Bank One is the trustee only and they are not the purchasers of the mortgage..  FN3. During argument, the court specifically requested from counsel the purpose of the deposition and was made aware that the inquiry from plaintiff's counsel involved legal questions which cannot be answered and that the documents and questions regarding the factual issues have been answered by the representative for the servicer, Mr. Blanchard.   Bank One is the trustee only and they are not the purchasers of the mortgage.

Brazzel–Massaro, Barbara, J.