JAMES T. COSTELLO ET AL.
GOLDSTEIN AND PECK, P.C., ET AL.
September 17, 2018
to recover damages for, inter alia, legal malpractice, and
for other relief, brought to the Superior Court in the
judicial district of Fairfield, where the court, Sommer,
J., granted the defendants' motion to dismiss and
rendered judgment thereon, from which the plaintiffs appealed
to this court, which affirmed the trial court's judgment;
thereafter, the plaintiffs, on the granting of certification,
appealed to the Supreme Court, which reversed the judgment of
this court and remanded the case to this court with direction
to remand the case to the trial court with direction to deny
the defendants' motion to dismiss; subsequently, the
court, Kamp, J., denied in part the plaintiffs'
motion for costs and granted the defendants' motion to
strike the second amended complaint; thereafter, the court,
Kamp, J., granted the defendants' motion for
judgment and rendered judgment in favor of the defendants,
from which the plaintiffs appealed to this court.
T. Costello, self-represented, with whom, on the brief, was
Dorothy Smulley Costello, self-represented, the appellants
M. Pare, with whom, on the brief, was Carmine Annunziata, for
the appellees (defendants).
DiPentima C. J., and Lavine and Beach, Js.
plaintiffs, James T. Costello and Dorothy Smulley Costello,
appeal from the judgment of the trial court,  rendered
subsequent to its granting of the motion to strike the second
amended complaint filed by the defendants, Goldstein &
Peck, P.C. (law firm), William J. Kupinse, Jr., and Andrew M.
McPherson. The plaintiffs claim that the court (1)
improperly granted the defendants' motion to strike, (2)
failed to consider alternatives to striking the complaint,
and (3) improperly denied the plaintiffs' claim for costs
pursuant to General Statutes § 52-243. We affirm the
judgment of the trial court.
operative complaint alleged in detail transactions between
the plaintiffs and the defendants. The complaint first
alleged various facts regarding the law firm. It then
described, under separate headings, a transaction regarding
Smulley and her former attorney, Juda Epstein (Epstein
matter), and a transaction regarding Costello and a
condominium association (Lynwood matter).
plaintiffs alleged the following facts regarding the Epstein
matter. Smulley retained the defendants to represent her on
June 16, 2008, after Epstein, her former attorney, brought an
action against her to collect legal fees. Kupinse filed
defenses and a counterclaim, and Epstein filed a motion for
summary judgment. Meanwhile, at some point prior to August 6,
2009, Kupinse and Epstein allegedly entered into a business
arrangement wherein Epstein would refer new clients to the
defendants in exchange for a fee. The plaintiffs alleged
that, as a result of this agreement, the defendants set
Smulley's matter aside in order to pursue more lucrative
matters, thus causing a nine month delay in opposing
Epstein's motion for summary judgment. The plaintiffs
further alleged that the defendants repeatedly advised her to
exchange mutual withdrawals and releases with Epstein and
delayed the Epstein matter without Smulley's knowledge or
approval by filing continuances and failing to object to
Epstein's motion for a continuance until prompted by
Smulley to do so. Smulley's special defenses were also
amended at least five times, allegedly due to the
plaintiffs further alleged that in February, 2010, the
defendants charged Smulley for preparation for a trial that
did not take place. In April, 2010, Kupinse demanded
approximately $15, 000 in order to continue his
representation, as well as $3, 250 for expert witness fees.
Although Smulley paid the expert's fees, she later
learned that Kupinse failed to forward her payment to the
expert, and the expert therefore terminated his engagement.
In May, 2010, Kupinse demanded $25, 000 in order to continue
his representation. Subsequently, Kupinse filed a motion to
withdraw as Smulley's counsel, which was granted in June,
2010. Three months after Kupinse withdrew from the Epstein
matter, Kupinse attempted to charge Smulley for unauthorized
meetings, including meetings with an attorney who was
consulted after Kupinse's withdrawal, the expert who
withdrew from the Epstein matter, and a client whom Epstein
had referred to Kupinse. The plaintiff alleged various
conflicts of interest on the part of Kupinse.
plaintiffs made the following allegations concerning the
Lynwood matter. Costello retained the defendants on November
18, 2008, to represent him in a dispute concerning funds
associated with the Lynwood Condominium Association
(Lynwood), and a receiver was appointed several months later.
Costello eventually was appointed temporary receiver, but
Kupinse allegedly delayed the appointment by failing to file
the appropriate motion for nearly five months. When unit
owners challenged Costello's authority to act as
substitute receiver and accused him of misappropriating
funds, Kupinse allegedly failed to file any response in
Costello's defense. After a court hearing in which
Costello agreed to provide certain documents to Lynwood's
counsel, Costello sent those documents to Kupinse, but
Kupinse allegedly failed to forward the documents properly.
Additionally, Costello's motion for reimbursement of
attorney's fees failed ‘‘because Kupinse
failed to appear to reaffirm his motion in support
thereof.'' Finally, at the time of his withdrawal
from the Lynwood matter, Kupinse sent Costello a bill for
several hundred dollars for time spent with Lynwood's
counsel, though Kupinse provided no explanation for the
charges. Costello further alleged various incidents in which
Kupinse failed to act diligently.
plaintiffs' operative complaint also alleged the
following facts concerning their relationship and shared
experiences with the defendants. The plaintiffs, who are
married to each other, each participated fully in the
other's matter and shared the payment of legal fees
charged by the defendants. The defendants failed to develop a
strategic plan for either plaintiff. Instead, they filed
claims that were easily defeated and that they later
withdrew. The conflict in the Epstein matter
‘‘spilled over'' into the defendants'
representation of Costello in the Lynwood matter, and the
behavior of the defendants was similar in both cases. The
operative complaint alleged legal malpractice against Kupinse
and McPherson, and as to both sets of transactions they
alleged unfair trade practices in violation of the
Connecticut Unfair Trade Practices Act (CUTPA), General
Statutes 42-110a et seq., against the law firm. The
defendants moved to strike the complaint for improper
trial court held that, although both plaintiffs relied
broadly on a theory of inadequate legal representation, the
plaintiffs' ‘‘reasons for their respective
dissatisfaction, and indeed the nature of the
representations, diverge[d] sharply.'' The court
noted, that ‘‘[w]here Smulley's allegations
sound alternatively in intentional and neglectful misconduct,
Costello appears to allege a more general sort of incompetent
representation.'' The court stated that the
plaintiffs' pleadings did not demonstrate a common scheme
sufficient to satisfy the requirement that each
plaintiff's right of relief arise out of the same
transaction or series of ...