Frank P. Cannatelli v. Statewide Grievance Committee (2013)

MEMORANDUM OF DECISION

The appellant, Frank Cannatelli, appeals from a decision of a reviewing committee of the Statewide Grievance Committee which found that he had violated rules 3.1 and 8.4(4) of the rules of professional conduct and which resulted in a written reprimand.

The background of the case is that the appellant represented a party named Kevin Malarney in a divorce proceeding pending in the Meriden superior court.   The opposing party was also represented.   The underlying case record shows an extensive litigation history.   After a trial, an unsuccessful appeal to the Appellate Court, and ultimately the rejection of a petition to the state Supreme Court, Mr. Cannatelli filed a new action in the New Haven Superior Court on behalf of his client, which action sought a new trial and an order vacating the divorce judgment.   The reviewing committee found that Mr. Cannatelli's “commencement of a new action in New Haven Superior Court seeking a new trial and an order vacating Complainant's divorce judgment had no good-faith basis.   The Complainant's divorce judgment had been previously entered in Meriden Superior Court and upheld in the Connecticut appellate courts.”

The return of record including the proceedings of the Statewide Grievance Committee which has been supplied to this Court is slightly in excess of 600 pages.   The court has reviewed the record and has heard the argument of counsel.   In reaching its decision the court is obligated to consider that record and those arguments against the decision of the reviewing committee by the “clearly erroneous” standard.   In so doing, the court should be deferential to the underlying decision and should upset it only in instances where there is no evidence to support the decision which has been made or if “the court is left with the definite and firm conviction that a mistake has been made.”   Brunswick v. Statewide Grievance Committee, 103 Conn.App. 601, 614 (2007).

The record shows that the Malarney divorce matter was fully litigated.   The court's docket sheet shows that the matter lasted from June 8, 2006 to May 24, 2010 and that there were 212 entries, including postjudgment proceedings.   Mr. Cannatelli filed his appearance in June of 2009.   Judgment was entered by the court on December 11, 2009, followed by postjudgment motions and orders.   An appeal was taken on December 24, 2009 which was dismissed in April of 2010.   A petition for certification followed to the Connecticut Supreme Court which was denied September 22, 2010.   Hearings took place prior to the judgment as well as a full hearing on the dissolution.   At the time that the new civil action was filed in the New Haven Superior Court, the opposing party, Karen Malarney, was forced to file an emergency application to discharge a lis pendens.   Mr. Cannatelli has offered the rationale that he could not get a fair hearing in Meriden, and thus filed a new action.   The grievance panel was well within reason to find this explanation unpersuasive, and to find that there was not a good-faith basis to support the filing of a new action.

As part of his appeal, Mr. Cannatelli claims that he was denied due process in that the hearing process was procedurally deficient.   However, a review of the record shows that he was advised in a letter dated January 17, 2012 that the grievance panel for the Judicial District of Ansonia Milford had investigated the complaint filed by Karen Malarney and had reached the finding that probable cause existed that he was guilty of misconduct.   The letter further advised him of the factual findings of the grievance panel and that the matter was being forwarded to the Statewide Grievance Committee for further proceedings.   Subsequently, by notice dated February 1, 2012 Mr. Cannatelli was advised by the office of the Chief Disciplinary Counsel of a hearing to be held on March 1, 2012 at the Superior Court in Hartford.   The hearing was continued several times, each time with notice to the respondent.

At the hearing which took place before the Grievance Committee it was disclosed that Karen Malarney would not be present as she was residing in the State of Florida.   It was the Committee's decision that it would proceed without her testimony.   The respondent claims that doing so deprived him of his right to cross examine her.   The respondent's claim is not persuasive because the record amply justifies the conclusion reached by the Committee.   Further, when the respondent was informed that he could subpoena the witness for testimony, it was his response that it was the responsibility of the disciplinary counsel to do so.   He did not seek to do so himself, or indicate that he would attempt to subject the witness to a deposition in order to present her testimony to the Committee.   Further, Mr. Cannatelli offers no scenario under which her testimony would have been favorable to him.   Indeed, given the history of the divorce litigation and the acrimony obvious in the record, the suggestion is far-fetched.   Whether the grievance committee found her credible or not, her testimony is likely immaterial to the conclusions which they ultimately arrived at.   Her testimony would have offered no relevant addition to the fact that the ease was tried in the Superior Court, appealed to both the Appellate Court and the Supreme Court, and concluded.   After it was finished, Mr. Cannatelli filed a new action.   Those simple facts form the basis for the Committee's decision.   There is no showing of prejudice nor is there a violation of due process to the respondent resulting from the absence of Mrs. Malarney.

The appellant also refers to Kevin Malarney's grievance complaint against Attorney Michael Budlong (Mrs. Malarney's attorney in the underlying divorce) who he claims violated Rule 3.4(7) by contacting the United States Attorney handling a criminal case against him in order to gain leverage in the divorce case.   In so doing, he alleges that the grievance committee acted against him because they erred in finding that Mr. Budlong did not commit a violation of the rule.   Further, he alleges that the federal grievance committee did find cause for further investigation.   Consequently, the appellant alleges that the action of the state grievance committee constitutes “a clearly erroneous ruling and a clear abuse of discretion and a clearly unwarranted exercise of discretion.”   In support of this claim the appellant states that the finding by the grievance committee “is nothing but an attempt to cover up its wrongful determination or finding that [Attorney] Budlong did not violate rule 3.4(7), when the federal grievance committee found probable cause or ruled that Budlong's conduct should be further investigated.”

The allegation as to the reviewing committee's improper motivation for its decision is baseless.   Even if Mr. Budlong's behavior were found by the federal grievance committee to have been improper, it would not serve as an excuse, a defense, or a justification for Mr. Cannatelli's behavior.   There is simply no evidence to support the appellant's allegation in this regard, nor is there any basis upon which to reach the conclusion he urges.

The evidence in the record supports the allegation against Mr. Cannatelli by clear and convincing evidence.   Accordingly the appeal is denied.

Robaina, J.

Robaina, Antonio C., J.