Daniel Fiamengo v. Norman A. Pattis (2015)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (# 141)

This action was commenced by service of process on August 23, 2013, process having been placed in the marshal's hands nine days earlier.   The fourteenth count having been stricken, the eighth, ninth, tenth, eleventh, twelfth, thirteenth, fifteenth and sixteenth counts are pending as to the defendant Norman A. Pattis.¹  The summaries of Mr. Fiamengo's counts—each in only one paragraph—which follow are based on the facts alleged (except damages), not on their legal conclusions.   The interpretation of pleadings is a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).

Practice Book § 17–49 provides that summary judgment must be rendered if the pleadings, affidavits, and any other proof submitted demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   A genuine issue of material fact has been defined as a triable issue of fact, which can be maintained by substantial evidence.  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969).   A motion for summary judgment shall be supported by appropriate documentary evidence, such as affidavits and certified transcripts of testimony given under oath.  Practice Book § 17–45.

In deciding a motion for summary judgment, the moving party has the burden of showing that genuine issues of material fact do not exist;  however, after the moving party has met its burden, the nonmoving party may still defeat the motion by presenting evidence showing that a genuine issue of material fact exists.  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).   In ruling on the present motion, the court's function is to determine whether any issues of material fact exist, not to decide any such issues.  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).   Summary judgment is appropriate only when it is the sole conclusion that a fair and reasonable person could reach based on the evidence.  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).   Another way to view the standard for granting a motion for summary judgment is the court must find that all the evidence needed to make the required findings is before the court and that, without weighing the credibility of any of that evidence, the movant is entitled to judgment.

In ruling on a motion for summary judgment, the trial court must view the submissions in the light most favorable to the non-moving party.  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 57, 68 A.3d 1162 (2013).   Statements that are merely conclusions are not evidence.   See Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).   In this light, the court addresses each of the counts against the defendant.

The eighth count claims negligence (“breach his duties & responsibilities to maintain a civil case”) “․ because defendant Pattis ․ [did not file] his appearance & maintain a civil matter that I ․ retained him [and] hired him to do.”  (The defendant regards the eighth count as for breach of contract, but there is no mention of a contract or agreement.   See Boone v. William W. Backus Hospital, supra, 272 Conn. 551.)   Among the grounds of the present motion is the bar of the applicable, three-year statute of limitation, General Statutes § 52–577.   The statute of limitation started to run on March 29, 2007, when the plaintiff lost a federal court jury trial in Fiamengo v. Saucier, in which he was represented by the defendant.   The statute ran out on March 29, 2010, years before this action was brought:  § 52–577 bars this action.

The ninth count claims fraud in that “the defendant Pattis intentionally cheats & defrauds [me] of $5,000.00 ․ because [he] failed to file his appearance & maintain the civil matter he was hired & retained to do.   The movant claims entitlement to judgment due to the bar of the same tort claims statute of limitation, § 52–577.   For the same reason stated concerning the eighth count, this count is barred.

The tenth count claims breach of contract in that the defendant “intentionally failed to file his appearance & maintain the [Fiamengo v. Waterbury Police ] civil action [as] he was hired & retained to do.” ²  The plaintiff signed a retainer agreement with the defendant on June 15, 2004.   The defendant claims entitlement to summary judgment based on the bar of the applicable six-year statute of limitation, § 52–576.   The breach of contract occurred no later than when the jury returned a verdict for the defendants in Fiamengo v. Saucier on March 29, 2007.   This suit having been initiated not earlier than August 12, 2013, when it was placed in a marshal's hands for service, the tenth count is barred by § 52–576, as the movant claims.

The eleventh count claims recklessness in that the defendant “files suit [Fiamengo v. Saucier and Tito ] in federal court and “intentionally failed to exhaust all of Superior, Appellate & Supreme Court remedies first before moving to a higher level court & ․ for Pattis not filing suit against the correct officers ․” (To regard this count as being for negligence, as the defendant does, would ignore the conclusory allegation of recklessness.)

The twelfth count claims negligence (“uncarelessness”) in that the defendant “had [the federal court civil action Fiamengo v. Saucier ] transferred to federal court [in] Hartford without my consent.”  (The plaintiff alleges that this was done “intentionally,” but, in contrast to the importance of that adverb in the tenth count, “intentionally” adds nothing of weight to the alleged transfer because that could not reasonably be perceived to have been done accidentally.   Pleadings must be construed reasonably to include their full and fair meaning, not contorted to strain reason.)  Deming v. Nationwide Mutual Ins., Co., 279 Conn. 745, 778, 905 A.2d 623 (2006).

The thirteenth count claims professional negligence (“unprofessional performances of civil action [Fiamengo v. Saucier ]” in that Pattis “intentionally failed to call on expert witness & failed to examine [members of the jury who were] officers & had family that are ․ officers ․ [in an action] against police officers ․” The fifteenth count claims professional malpractice (“unprofessional conduct”) in that Pattis “abused” the plaintiff in “the two civil actions” ³ in that the plaintiff did not get “a fair trial and the enjoyment of Pattis representation ․ [and] for Pattis intentionally cheating & defrauding me of $5,000.00.”   The defendant claims these four counts, eleven, twelve, thirteen and fifteen, are barred by the same three-year tort statute of limitation, § 52–577.   Because the eleventh count, for recklessness, is based on allegations of what the defendant Pattis failed to do before filing Fiamengo v. Saucier in federal court (or at the time that suit was filed against the wrong officers), the statute of limitation began to run as to the recklessness count before Fiamengo v. Saucier was even tried in March of 2007.   For the same reason stated concerning the eighth count, these counts are barred.

The sixteenth count claims violation of the Connecticut Unfair Trade Practices Act (“CUTPA”) “as foresaid throughout this complaint.”  (CUTPA is the court's interpretation of what the plaintiff actually alleges, “Connecticut Unfair Attorney Practices Act.” See Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 778.   The defendant claims this count, too, is barred by the applicable statute of limitation, which also three years from the alleged violation.  Conn. Gen.Stat. § 42–110g(f).  For the reasons concerning what is “foresaid throughout” the plaintiff's complaint, the violation, if any, of CUTPA occurred no later than March 27, 2007.   This count, two, is barred by the statute of limitation.

The plaintiff claims at the outset of his complaint in this case that he is entitled to bring it, and to avoid the otherwise-applicable statutes of limitation, by the so-called savings statute, § 52–592.   He claims that a prior case, Fiamengo v. Burgdorff, Docket No. CV–08–5009882–S in the New London Judicial District, was dismissed on April 11, 2013, “for [a] matter of form” within the meaning of § 52–192(a) on and, therefore, the pertinent statutes of limitation are essentially tolled as of the filing of Fiamengo v. Burgdorff on December 22, 2008.   First, the claims against the defendant Pattis in Fiamengo v. Burgdorff were only negligence and breach of contract:  § 52–192 can only apply, if at all, to those claims in this case, i.e., the eighth, tenth, twelfth, thirteenth and fifteenth counts.   As to those counts, the court finds that Fiamengo v. Burgdorff was dismissed for the plaintiff's failure to attend a scheduled status conference on January 16, 2013.   The court (Cosgrove, J.) gave the plaintiff an opportunity to show that he was incarcerated on January 16, 2013, as the plaintiff claimed.   The court found, as the plaintiff admits in this case, that his representation that he was incarcerated was not correct.   The dismissal remained.   In this case, the plaintiff claims that he missed the January 16, 2013, conference because he was “mistaken of [his] other civil matters.”   Apart from the lack of detail in that excuse,⁴ the court finds that there are about a score of other cases in which he is plaintiff (he acknowledges nine in this case) and it behooves such an active litigant to manage his cases with diligence, including of course attending all court events absent compelling cause.   See generally Vestuti v. Miller, 124 Conn.App. 138, 145–46, 3 A.3d 1046 (2010) (although § 52–592 should be broadly construed, judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly;  judges must maintain the expectation that matters will go forward as assigned).   The court finds there is no material question of fact that, having misrepresented the reason for his absence on January 16, 2013, there is no mere “mistake, inadvertence or excusable neglect” such as would bring this case within the savings statute.   See Ruddock v. Burrowes, 243 Conn. 569, 577, 706 A.2d 967 (1998).

For the foregoing reasons, the motion for summary judgment is granted as to all counts against the defendant.

Cole–Chu, J.

FOOTNOTES

FN1. On March 4, 2014, summary judgment entered in favor of the only other defendant in this case, Neil O'Leary..  FN1. On March 4, 2014, summary judgment entered in favor of the only other defendant in this case, Neil O'Leary.

FN2. The defendant regards this count as for legal malpractice.   Though “negligent” and “negligen[ce]” are mentioned, to treat the tenth count as alleging malpractice—professional negligence—would be to ignore the allegation of intentional failure to do what the plaintiff alleges the defendant was hired to do and to create a count essentially repeating the eighth count.   A pleading must be construed reasonably to include full, fair meaning, not contorted to strain rational comprehension.  Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 778, 905 A.2d 623 (2006)..  FN2. The defendant regards this count as for legal malpractice.   Though “negligent” and “negligen[ce]” are mentioned, to treat the tenth count as alleging malpractice—professional negligence—would be to ignore the allegation of intentional failure to do what the plaintiff alleges the defendant was hired to do and to create a count essentially repeating the eighth count.   A pleading must be construed reasonably to include full, fair meaning, not contorted to strain rational comprehension.  Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 778, 905 A.2d 623 (2006).

FN3. Although no action is identified in the fifteenth count, the court interprets the count to refer to Fiamengo v. Saucier, brought for the plaintiff by the defendant in the United States District Court, and Fiamengo v. Burgdorff, Docket No. CV–08–5009882–S in the New London Judicial District, which was dismissed and the claims against Pattis in which the plaintiff seeks to keep alive in this case.   See Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 778..  FN3. Although no action is identified in the fifteenth count, the court interprets the count to refer to Fiamengo v. Saucier, brought for the plaintiff by the defendant in the United States District Court, and Fiamengo v. Burgdorff, Docket No. CV–08–5009882–S in the New London Judicial District, which was dismissed and the claims against Pattis in which the plaintiff seeks to keep alive in this case.   See Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 778.

FN4. In comparison, see Vestuti v. Miller, 124 Conn.App. 138, 140, 3 A.3d 1046 (2010), in which the court was able to consider a detailed explanation of why an attorney missed a pretrial conference due to being on trial in another matter at the same courthouse..  FN4. In comparison, see Vestuti v. Miller, 124 Conn.App. 138, 140, 3 A.3d 1046 (2010), in which the court was able to consider a detailed explanation of why an attorney missed a pretrial conference due to being on trial in another matter at the same courthouse.

Cole–Chu, Leeland J., J.