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Picard v. Guilford House, LLC

Court of Appeals of Connecticut

November 21, 2017

ANGELA PICARD
v.
THE GUILFORD HOUSE, LLC, ET AL.

          Argued Date: September 15, 2017

         Writ of error from the decision of the Superior Court in the judicial district of Hartford, Miller, J., granting the defendants' motions for sanctions, brought to the Supreme Court, which transferred the matter to this court. Writ of error dismissed.

          Norman Pattis, for the appellant (plaintiff in error Linda Lehmann).

          Christopher H. Blau, with whom, was David J. Robertson, and, on the brief, were Madonna A. Sacco and Heidi M. Cilano, for the appellees (defendants).

          Alvord, Sheldon and Keller, Js.

          OPINION

          SHELDON, J.

         This matter comes before this court on a writ of error brought by the plaintiff in error, Linda Lehmann, former attorney for the plaintiff in the underlying action, Angela Picard.[1] The plaintiff in error challenges the order of the trial court, Miller, J.[2] imposing financial sanctions upon her for misconduct while conducting an out-of-state deposition in the underlying action. We conclude that the court did not abuse its discretion in imposing the challenged sanctions. Accordingly, we dismiss the writ of error.

         The record discloses the following relevant facts and procedural history. The underlying wrongful death action was commenced in October, 2010. Picard alleged that her decedent died due to medical malpractice by the defendant Victor Sawicki, a physician, [3] and independent negligence by the Guilford House defendants and by the defendant 109 West Lake Avenue, LLC.

         The plaintiff in error noticed the deposition of Cathleen O'Connor, a former administrator at The Guilford House, LLC, for November 1, 2013, in Augusta, Maine. After the O'Connor deposition recessed, the Guilford House defendants filed a motion for a protective order on November 27, 2013, in which they requested the court to enter an order terminating the deposition based upon the plaintiff in error's allegedly inappropriate and unprofessional conduct in connection therewith. This motion was followed by a second motion filed on December 5, 2013, in which the Guilford House defendants sought both to disqualify the plaintiff in error as counsel in the underlying action and to impose financial sanctions upon her to remunerate them for costs and attorney's fees they claimed to have incurred as a result of the plaintiff in error's alleged misconduct. After the filing of the latter motion, the court ordered all counsel to provide it, by e-mail and hard copy, copies of all depositions taken in the case to date, as well as DVD copies of all depositions that thus far had been recorded. In compliance with this order, the plaintiff in error disclosed, inter alia, that she had made an iPhone voice memo recording of the O'Connor deposition, which she submitted to the court ex parte, claiming that her client was entitled by privilege not to disclose it to the defendants. The court thereafter ruled that the recording was not in fact privileged, and so ordered the plaintiff in error to deliver copies of it to all opposing counsel.

         Upon listening to the recording, counsel for the Guilford House defendants realized that it contained not only on-the-record statements from the deposition but off-the-record conversations between O'Connor and The Guilford House counsel, and The Guilford House counsel and counsel for the other defendants. The Guilford House defendants subsequently filed a supplemental motion on January 3, 2014, in which they renewed their requests to disqualify the plaintiff in error as counsel in the underlying action and to impose financial sanctions upon her as a result of her misconduct in connection with the O'Connor deposition. The Guilford House defendants also filed a motion for order on January 8, 2014, in which they requested that the court not listen to the recording. To avoid creating possible grounds for his recusal, Judge Miller requested another judicial authority, Dewey, J., to conduct a hearing on what to do with the recording. Judge Dewey heard the parties on the issues raised in the January 8 motion on January 17, 2014. At the hearing, Judge Dewey ordered that all copies of the recording be placed under seal in the custody of Judge Miller and that the plaintiff in error provide written assurances to the court and the defendants that the recording had been completely and permanently deleted from her phone.[4]

         In a memorandum of decision dated April 3, 2014, the court, Miller, J., granted the Guilford House defendants' January 3 motion for sanctions. The court imposed these sanctions upon the plaintiff in error based upon its established authority to do so in response to an attorney's ‘‘course of . . . dilatory, bad faith and harassing litigation conduct, even in the absence of a specific rule or order of the court that is claimed to have been violated.'' (Internal quotation marks omitted.) Wyszomierski v. Siracusa, 290 Conn. 225, 234, 963 A.2d 943 (2009). Based upon the transcripts of the O'Connor deposition and the hearing before Judge Dewey, as well as pleadings and correspondence between the plaintiff and the defendants' counsel and between counsel and the court, the court described the O'Connor deposition as ‘‘unusually contentious'' and found that the plaintiff in error's conduct during the deposition was so inappropriate as to warrant the imposition of sanctions. The court ruled that such sanctionable conduct included: scheduling the deposition to end at an unusually early hour without informing the defendants' counsel of that arrangement until after the deposition had begun;[5] conducting an unfocused examination not likely to lead to relevant or discoverable information from the witness, in violation of Practice Book § 13-30 (c);[6] failing to ask for explanations to objections by non questioning attorneys, as permitted by Practice Book § 13-30 (b), [7] which might have made the deposition go more smoothly and productively; and being rude. It also found that the plaintiff in error's unconsented to recording of the O'Connor deposition, particularly of the off-the-record conversations between lead counsel for the Guilford House defendants and counsel for Dr. Sawicki and between lead counsel for the Guilford House defendants and the deponent, was improper and violated Practice Book § 13-27 (f).[8] The court made no finding as to whether the plaintiff in error had violated the Rules of Professional Conduct. It did, however, state that such violations might have occurred, and thus it sent its decision to the statewide disciplinary counsel for such further investigation and action as it deemed appropriate, along with a recommendation for an interim suspension of the plaintiff in error.[9] The court conducted a hearing on October 19, 2015, to hear evidence and oral argument as to the amount of sanctions it should impose.

         Thereafter, in a memorandum of decision dated July 14, 2016, the court specified the amount of the financial sanctions to be imposed upon the plaintiff in error. The Guilford House defendants had claimed, in an affidavit from their counsel, that they had incurred costs and attorney's fees totaling $72, 558.84 for services rendered in connection with the deposition and all subsequent proceedings to which it gave rise. The court disallowed $12, 187 of such costs and fees, which were incurred for services rendered in defense of a separate grievance filed by the underlying plaintiff against lead counsel for the Guilford House defendants, Madonna Sacco, in connection with the O'Connor deposition. In sum, the court awarded $60, 371.84 in financial sanctions against the plaintiff in error, to be paid directly to counsel for the Guilford House defendants. This writ of error followed.

         The plaintiff in error contends that it is a matter of first impression in Connecticut as to ‘‘whether financial sanctions are . . . appropriate as a matter of law where . . . a lawyer is grieved for conduct arising out of litigation, and the matter is resolved by the grievance process.'' She argues that the imposition of sanctions against her in the form of costs was barred by res judicata because the statewide grievance committee had already acted on the matter. She also argues that the Guilford House defendants should be collaterally estopped from seeking costs in the form of court-imposed sanctions upon her because their counsel was in privity with the statewide grievance counsel in the grievance proceeding and the statewide grievance committee fully and fairly litigated the misconduct for which the Guilford House defendants requested sanctions from the trial court. Finally, she argues that the amount of sanctions imposed upon her was not proportional to her violation, and thus constituted an abuse of the court's discretion. We reject the plaintiff in error's claims.

         The plaintiff in error first argues that the imposition of sanctions in the form of costs was barred by principles of res judicata and collateral estoppel as a result of the statewide grievance committee's prior issuance of a reprimand to her based upon the same ...


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