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Costello v. Goldstein & Peck, P.C.

Court of Appeals of Connecticut

January 29, 2019


          Argued September 17, 2018

         Procedural History

         Action 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. Affirmed.

          James T. Costello, self-represented, with whom, on the brief, was Dorothy Smulley Costello, self-represented, the appellants (plaintiffs).

          Nadine M. Pare, with whom, on the brief, was Carmine Annunziata, for the appellees (defendants).

          DiPentima C. J., and Lavine and Beach, Js.


          BEACH, J.

         The plaintiffs, James T. Costello and Dorothy Smulley Costello, [1] appeal from the judgment of the trial court, [2] 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.[3] 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.

         The 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).

         The 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 defendants' errors.

         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.

         The 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.

         The 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 joinder.

         The 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 ...

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