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MICHAEL PERUGINI v. ROSEMARY GIULIANO ET AL.
(AC 35167)
Bear, Keller and Harper, Js.
Argued December 2, 2013—officially released March 25, 2014
(Appeal from Superior Court, judicial district of
Waterbury, Trombley, J. [request for leave to amend];
Dooley, J. [judgment of dismissal in part]; Shapiro, J.
[judgment].)
Michael Perugini, self-represented, the appellant
(plaintiff).
Amber J. Hines, with whom was Paul Grocki, for
the appellees (defendants).
Opinion
KELLER, J. The self-represented plaintiff, Michael
Perugini, appeals from the judgment of the trial court
rendered in favor of the defendants, attorney Rosemary
Giuliano and the law firm with which she is associated,
Giuliano & Richardson, LLC, in his action alleging mis-
conduct in the defendants’ representation of the plain-
tiff’s wife during the couple’s prior divorce proceedings.
The plaintiff claims that the court erred in (1) sus-
pending his February 8, 2012 deposition until the plead-
ings were closed, (2) denying his February 22, 2012
request for leave to amend his complaint, (3) dismissing
his claim of negligent infliction of emotional distress
for lack of subject matter jurisdiction, and (4) striking
his August 6, 2012 substitute complaint from the docket
and rendering judgment for the defendants. We affirm
the judgment of the trial court.
The record reveals the following procedural history.
On September 9, 2010, the plaintiff, appearing before
the court as a self-represented party, filed a two count
complaint against the defendants for wilful violation of
the Rules of Professional Conduct and negligent inflic-
tion of emotional distress. The complaint alleged that
Giuliano had engaged in misconduct during her repre-
sentation of Kimberly Gamble-Perugini, the plaintiff’s
former wife, in prior marriage dissolution proceedings
against the plaintiff. Specifically, it alleged that Giuliano
failed to disclose a conflict of interest resulting from
her prior representation of Judge Elizabeth Bozzuto,
who presided over postjudgment proceedings and
issued various rulings between April 27, 2009, and June
8, 2010. Although the complaint acknowledged that any
allegedly inappropriate orders issued by Judge Bozzuto
had been vacated, the plaintiff sought damages from
the defendants for the stress, agony, depression and
expense he claims to have endured as a result of Giuli-
ano’s alleged misconduct.
This action was commenced on September 10, 2010.
The defendants filed a request to revise the plaintiff’s
complaint on September 21, 2011, to which the plaintiff
did not properly object until December 30, 2011. In the
interim, the plaintiff noticed Giuliano’s deposition for
October 20, 2011. On October 14, 2011, the defendants
filed a motion for a protective order on several grounds,
including the claim that privileged documents involving
the defendants’ representation of Gamble-Perugini
should not be explored and the deposition should be
limited to the allegations in the complaint. On Decem-
ber 6, 2011, the court, Trombley, J., issued an order
allowing the deposition to proceed by February 17,
2012, which further stated: ‘‘The areas inquired into at
said deposition shall be those that are framed by the
allegations in the plaintiff’s complaint . . . .’’ He fur-
ther indicated that ‘‘[t]he defendants are not required to
produce their file or any documents in their possession
pertaining to the dissolution action . . . entitled Kimb-
erly Gamble-Perugini v. Michael Perugini, as the infor-
mation contained therein is protected by attorney-
client privilege.’’
On January 17, 2012, Judge Trombley, pursuant to
Practice Book § 10-37 (b),1 ordered the plaintiff to revise
his complaint as requested by the defendants. The plain-
tiff filed a motion to reargue to which the defendants
objected. On February 8, 2012, Judge Trombley denied
the motion to reargue and ordered the plaintiff to revise
his complaint and to incorporate the revisions ordered
by the court on January 17, 2012. On February 8, 2012,
the plaintiff, having not yet revised his complaint, com-
menced a deposition of Giuliano. During the deposition,
the plaintiff asked Giuliano questions regarding her
communications with Gamble-Perugini during the prior
divorce proceedings. The defendants objected, claiming
that the information was protected by the attorney-
client privilege and that the questions were outside the
scope of the pleadings. Judge Trombley was asked to
resolve the issue and, upon learning that the plaintiff
still had not revised his complaint, ordered, sua sponte,
that a revised complaint be filed within two weeks.
Additionally, Judge Trombley suspended the deposition
until, absent a motion for summary judgment, the plead-
ings were closed and all the issues were framed. On
February 27, 2012, the plaintiff filed a motion to reargue
asking Judge Trombley to reconsider the suspension
of the deposition of Giuliano, which the court denied.
On February 21, 2012, the plaintiff filed a revised
complaint that still contained only two counts, wilful
violation of the Rules of Professional Conduct and negli-
gent infliction of emotional distress. Although the
revised complaint addressed some of the defendants’
requested revisions, it also included new factual allega-
tions that Giuliano had engaged in representation of
Gamble-Perugini without her consent.
Only one day later, on February 22, 2012, the plaintiff
filed a request for leave to amend his revised complaint,
to which the defendants objected. The proposed
amended complaint included with the request, dated
February 22, 2012, deleted the count for wilful violation
of the Rules of Professional Conduct, maintained the
count for negligent infliction of emotional distress and
added three new counts: fraudulent misrepresentation,
conspiracy to defraud, and violation of the Connecticut
Unfair Trade Practice Act (CUTPA), General Statutes
§ 42-110a et seq. The proposed amended complaint, in
paragraphs 10 and 12 of the second count, further
expanded the facts alleged in support of the plaintiff’s
claim that Giuliano had engaged in unauthorized repre-
sentation of Gamble-Perugini while Giuliano had knowl-
edge of the couple’s reconciliation. On March 21, 2012,
Judge Trombley sustained the defendants’ objection
to the plaintiff’s request to file a proposed amended
complaint and established the two count February 21,
2012 revised complaint as the operative complaint. The
court’s order stated: ‘‘While our courts have been liberal
in permitting amendments . . . this liberality has limi-
tations. Amendments should be made seasonably. Fac-
tors to be considered in passing on a [request] to amend
are the length of the delay, fairness to the opposing
parties and the negligence, if any, of the party offering
the amendment. . . . Whether to allow an amendment
is a matter left to the sound discretion of the trial court.
. . . Practice Book § 10-60 (b) provides: The judicial
authority may restrain such amendments so far as may
be necessary to compel the parties to join issue in a
reasonable time for trial.’’ (Citation omitted; internal
quotation marks omitted.) On April 6, 2012, the plaintiff
filed a motion to recuse Judge Trombley, which the
court denied on April 23, 2012.
On April 9, 2012, the defendants filed another request
to revise the plaintiff’s February 21, 2012 revised com-
plaint, to which the plaintiff objected. On May 14, 2012,
the court, Dooley, J., overruled the plaintiff’s objections,
thereby requiring plaintiff to revise his complaint as
requested by the defendants. The plaintiff’s second
revised complaint, dated and filed on May 22, 2012,
again set forth two counts of wilful violation of the
Rules of Professional Conduct and negligent infliction
of emotional distress. The defendants then moved to
strike the second revised complaint, arguing that the
Rules of Professional Conduct do not give rise to a
cause of action and that the count of negligent infliction
of emotional distress was barred by the doctrine of
absolute immunity for attorney conduct in the course
of a judicial proceeding.2 On July 26, 2012, Judge Dooley
granted the defendants’ motion to strike as to the count
sounding in wilful violation of the Rules of Professional
Conduct3 and dismissed the count sounding in negligent
infliction of emotional distress for lack of subject matter
jurisdiction under the doctrine of absolute immunity.
On August 6, 2012, pursuant to Practice §10-44,4 the
plaintiff filed a substitute complaint, premised on simi-
lar facts as previously set forth, but asserting six counts
sounding in conspiracy to defraud, alienation of
affection, violation of CUTPA, abuse of process, vexa-
tious litigation and intentional infliction of emotional
distress. The defendants objected to this substitute
complaint, arguing that the plaintiff was required to
request leave to amend his complaint pursuant to Prac-
tice Book § 10-605 and that the amendments made by
the plaintiff were retaliatory, violated prior court
orders, and were prejudicial to the defendants, given
the age of the case and the fact that that many of the
claims and allegations already had been ruled legally
insufficient and improper. The plaintiff filed an opposi-
tion to the defendants’ objection, arguing that he had the
right to file a substitute complaint pursuant to Practice
Book § 10-44 and that the defendants’ objection was a
procedurally improper pleading. The plaintiff’s opposi-
tion also addressed the defendants’ nonprocedural
arguments that the substitute complaint violated the
law of the case and prejudiced the defendants. On Sep-
tember 25, 2012, the court, Shapiro, J., sustained the
defendants’ objection and struck the August 6, 2012
substitute complaint from the record. On September
27, 2012, the defendants filed a motion for judgment.
On October 11, 2012, the plaintiff filed a motion for
extension of time to plead and a motion to reargue. On
October 17, 2012, Judge Shapiro denied the plaintiff’s
motions, granted the defendants’ motion for judgment
and rendered judgment for the defendants. This appeal
followed. Additional facts and procedural history will
be set forth as necessary.
I
On appeal, the plaintiff first challenges Judge Trom-
bley’s order suspending the deposition of Giuliano until
the pleadings were closed, and his order denying the
plaintiff’s February 22, 2012, request for leave to amend
his complaint.
A
The plaintiff first claims that Judge Trombley erred
in suspending the deposition of Giuliano until such time
that the pleadings were closed. Specifically, the plaintiff
argues that Judge Trombley’s order suspending the
deposition represented a reversal of the court’s previ-
ous order compelling Giuliano to submit to a deposition
before a certain date. We consider this claim to be
abandoned.
At the February 8, 2012 hearing in which Judge Trom-
bley was asked to resolve the dispute concerning Giuli-
ano’s invocation of the attorney-client privilege, the
judge learned that the plaintiff had not yet revised his
complaint as required by a previous order. As a result,
he ordered that the plaintiff submit a revised complaint
within two weeks from the date of the hearing. Follow-
ing this order, Judge Trombley stated: ‘‘The second
thing we are going to do is we are going to suspend
this deposition as of now, until such time as the plead-
ings are closed and the issue is joined.’’ He went on to
explain that the plaintiff still would have an opportunity
to complete the deposition before pleadings were
closed if the defendants moved for summary judgment.
He then asked the plaintiff: ‘‘Fair enough?’’ The plaintiff
responded: ‘‘Fair enough.’’ At no point during this hear-
ing6 did the plaintiff object to the court’s order.
‘‘It is fundamental that claims of error must be dis-
tinctly raised and decided in the trial court. . . . Prac-
tice Book § 60-5 provides in relevant part that our
appellate courts shall not be bound to consider a claim
unless it was distinctly raised at the trial . . . . That
requirement means that it must be so stated as to bring
to the attention of the court the precise matter on which
its decision is being asked. . . . As our Supreme Court
has explained, [t]he reason for the rule is obvious: to
permit a party to raise a claim on appeal that has not
been raised at trial—after it is too late for the trial court
or the opposing party to address the claim—would
encourage trial by ambuscade, which is unfair to both
the trial court and the opposing party.’’ (Citations omit-
ted; emphasis omitted; internal quotation marks omit-
ted.) U.S. Bank National Assn. v. Iaquessa, 132 Conn.
App. 812, 814–15, 34 A.3d 1005 (2012).
Here, by failing to object to the court’s suspension
of the deposition, the plaintiff did not provide the court
with a timely opportunity to reconsider the order. The
record therefore is devoid of any deliberation as to why
the deposition should have continued on February 8,
2012, or how its suspension might have prejudiced the
plaintiff. Furthermore, having expressly agreed to the
court’s decision, the plaintiff cannot now seek to attack
the order on appeal. See Menon v. Dux, 81 Conn. App.
167, 170–71, 838 A.2d 1038 (claim unpreserved where
appealing party expressly acquiesced to court’s eviden-
tiary ruling at trial), cert. denied, 269 Conn. 913, 852
A.2d 743, cert. denied, 543 U.S. 1003, 125 S. Ct. 623, 160
L. Ed. 2d 463 (2004). Accordingly, we decline to review
this unpreserved claim.
B
Next, the plaintiff claims that Judge Trombley erred
in sustaining the defendants’ objection to his February
22, 2012 request for leave to amend his complaint. Spe-
cifically, he argues that the court abused its discretion
in failing to take a liberal approach to Practice Book
§ 10-60. We disagree.
‘‘Our standard of review of the plaintiff’s claim is well
settled. While our courts have been liberal in permitting
amendments . . . this liberality has limitations.
Amendments should be made seasonably. Factors to
be considered in passing on a motion to amend are the
length of the delay, fairness to the opposing parties
and the negligence, if any, of the party offering the
amendment. . . . The motion to amend is addressed
to the trial court’s discretion which may be exercised
to restrain the amendment of pleadings so far as neces-
sary to prevent unreasonable delay of the trial. . . .
Whether to allow an amendment is a matter left to the
sound discretion of the trial court. This court will not
disturb a trial court’s ruling on a proposed amendment
unless there has been a clear abuse of that discretion.
. . . It is the [plaintiff’s] burden in this case to demon-
strate that the trial court clearly abused its discretion.’’
(Citations omitted; internal quotation marks omitted.)
Wagner v. Clark Equipment Co., 259 Conn. 114, 128,
788 A.2d 83 (2002).
At the time of Judge Trombley’s ruling, the action
had been pending more than seventeen months, since
September 10, 2010. The pleadings still were not closed.
In sustaining the defendants’ objection to the plaintiff’s
request for leave to amend his complaint, the court
noted that the plaintiff already had filed several com-
plaints and cited the provision in Practice Book § 10-
60 (b) that allows the court to restrain amendments in
order to compel the parties to join issue in a reasonable
time for trial. These were proper considerations within
the court’s discretion in ruling on the issue and, there-
fore, we decline to upset the court’s decision.
II
The plaintiff also challenges Judge Dooley’s order
dismissing the plaintiff’s claim of negligent infliction of
emotional distress for lack of subject matter jurisdic-
tion. Specifically, he argues that the doctrine of absolute
immunity does not apply to claims alleging attorney
misconduct for the purpose of personal financial gain.7
We are not persuaded.
‘‘[W]hether attorneys are protected by absolute
immunity for their conduct during judicial proceedings
is a question of law over which our review is plenary.’’
Simms v. Seaman, 308 Conn. 523, 530, 69 A.3d 880
(2013). As the doctrine of absolute immunity concerns
a court’s subject matter jurisdiction; Stone v. Pattis,
144 Conn. App. 79, 96–97, 72 A.3d 1138 (2013); we are
‘‘mindful of the well established notion that, in
determining whether a court has subject matter jurisdic-
tion, every presumption favoring jurisdiction should be
indulged.’’ (Internal quotation marks omitted.) Id., 95.
The question before us is whether the facts as alleged
in the pleadings, viewed in the light most favorable to
the plaintiff, are sufficient to survive dismissal on the
grounds of absolute immunity. Rioux v. Barry, 283
Conn. 338, 341, 343 927 A.2d 304 (2007).
Our case law differentiates between actions based
on alleged misconduct by an attorney in his role as
advocate, such as defamation and fraud, and actions
that challenge the underlying purpose of the litigation
itself, such as vexatious ligation and abuse of process.
Simms v. Seaman, supra, 308 Conn. 546. For the former
category, the law protects attorneys from suit in order
to encourage zealous advocacy on behalf of their cli-
ents, unrestrained by the fear of exposure to tort liabil-
ity. Id., 535–36. On this basis, we recently have held
that claims against attorneys for negligent infliction of
emotional distress are barred when the alleged conduct
giving rise to the action occurs in the course of judicial
proceedings. Stone v. Pattis, supra, 144 Conn. App. 98.
In the present case, the plaintiff alleged Giuliano, in
the course of representing Gamble-Perugini in divorce
proceedings against the plaintiff: (1) failed to disclose a
conflict of interest with the presiding judge, (2) exerted
improper influence over the judge to obtain favorable
monetary rulings, and (3) filed court actions without
Gamble-Perugini’s consent for her own financial bene-
fit. All of this alleged conduct occurred in the context
of the dissolution proceedings between the plaintiff and
Gamble-Perugini. Giuliano therefore is immune from
any claim of negligent infliction of emotional distress
arising from that conduct. See id.
We recognize that the plaintiff alleged that certain
proceedings at issue were not brought for a proper
purpose, as they were allegedly initiated by Giuliano
without Gamble-Perugini’s consent for the sole purpose
of self-enrichment. These allegations may have properly
formed the basis for an abuse of process action, where
‘‘a legal process [is used] against another primarily to
accomplish a purpose for which it is not designed’’;
[internal quotation marks omitted] Mozzochi v. Beck,
204 Conn. 490, 494, 529 A.2d 171 (1987); and absolute
immunity does not necessarily attach. Id., 497. Nonethe-
less, the allegation that certain judicial proceedings
were not brought for a proper purpose does not in itself
remove immunity for attorneys in negligent infliction
of emotional distress actions. See Simms v. Seaman,
supra, 308 Conn. 526–28, 569–70 (attorney who alleg-
edly misrepresented client’s financial situation in order
to seek court ordered payments immune from action
for intentional infliction of emotional distress). In order
to avoid dismissal, such an action against an attorney
must allege conduct that occurred outside the scope
of judicial proceedings. See Heim v. California Federal
Bank, 78 Conn. App. 351, 367, 828 A.2d 129 (holding
that absolute immunity did not apply to intentional
infliction of emotional distress claim where ‘‘some of
the allegations . . . [were] based on . . . conduct
that occurred outside the scope of judicial proceed-
ings’’), cert. denied, 266 Conn. 911, 832 A.2d 70 (2003).
Thus, the court’s decision to dismiss the plaintiff’s claim
on the basis of absolute immunity was proper.
III
Next, the plaintiff challenges Judge Shapiro’s orders
striking the plaintiff’s August 6, 2012 substitute com-
plaint from the docket and entering judgment for the
defendants.
A
First, the plaintiff argues that the defendants’ objec-
tion to his substitute complaint, rather than a motion to
strike, was an improper vehicle to challenge a complaint
filed pursuant to Practice Book § 10-44. We disagree.
‘‘The interpretive construction of the rules of prac-
tice. . . . involves a question of law and our review
. . . is plenary.’’ (Citations omitted; internal quotation
marks omitted.) Commissioner of Social Services v.
Smith, 265 Conn. 723, 733–34, 830 A.2d 228 (2003).
Judge Shapiro, in determining he could consider the
defendants’ objection, first noted that the procedural
posture in this case differs from those in the two cases
cited by the plaintiff in support of his argument. The
court noted that in each of the cases cited by the plain-
tiff, Smith v. Furness, 117 Conn. 97, 100, 166 A. 759
(1933), and Newman v. Golden, 108 Conn. 676, 679–80,
144 A. 467 (1929), permission was sought to file the
amended pleading. Here, the plaintiff did not seek per-
mission to file the August 6, 2012, substitute complaint.
In addition, neither of these cited cases involved an
objection, as in this case, that the substitute complaint
violated prior court orders. The court then indicated,
‘‘[O]ther courts have considered objections to com-
plaints which were filed after a motion to strike was
granted.’’8 Second, the court, noting that the defendants
were claiming that the substitute complaint violated
prior orders in the case, stated: ‘‘It is fundamental that
no one has a right to disobey the orders of any court of
this state . . . . Consideration of an objection where a
party asserts that a pleading has been filed in violation
of a court order, even though the Practice Book does
not specifically provide for such an objection, is also
supported by Practice Book § 1-89 . . . which requires
that Practice Book provisions be construed to advance
justice. . . . The proper administration of justice
includes the necessity of enforcement of compliance
with court orders.’’ (Citations omitted; footnote in origi-
nal; internal quotation marks omitted.)
The defendants, as part of their objection, argued that
the substitute complaint violated the orders of Judge
Trombley and Judge Dooley, and that it was ‘‘prejudicial
in that, two years into the case, the plaintiff seeks
‘another bite of the apple’ by stating claims and allega-
tions already ruled to have be legally insufficient and
improper . . . .’’
We agree that to permit a party to persist in refiling
pleadings in a form previously disallowed does not
advance the interests of justice. Rather, it encourages
needless delay and places an unnecessary and unfair
burden on the party who previously has successfully
stricken or objected to the improper filing. When parties
engage in such tactics, their opponent and the court
needlessly and repetitively are forced back to square
one. Furthermore, we conclude, after reviewing the
defendants’ objection and the plaintiff’s reply to it, that
the court proceeded properly. Those pleadings pro-
vided the parties with a full and fair opportunity to be
heard, quite similar in nature to a case where a request
to revise, and a consequent objection thereto, has
been filed.10
B
Next, the plaintiff claims that Judge Shapiro erred in
striking the plaintiff’s August 6, 2012 substitute com-
plaint from the docket because the court lacked the
authority to disallow a substitute complaint filed by
right pursuant to Practice Book §10-44. We disagree.
As previously noted in part III A of this opinion,
because this claim involves the interpretive construc-
tion of the rules of practice, our review is plenary.
Practice Book § 10-44 provides that ‘‘[w]ithin fifteen
days after the granting of any motion to strike, the
party whose pleading has been stricken may file a new
pleading.’’ This court has clarified that this right ‘‘is
limited to making those corrections needed to render
the claims set forth in the original pleading legally suffi-
cient. It is not an opportunity to file wholly amended
pleadings that assert new legal claims . . . permission
for which ordinarily could be obtained only in accor-
dance with the provisions of Practice Book § 10-60.’’
GMAC Mortgage, LLC v. Ford, 144 Conn. App. 165,
180–81, 73 A.3d 742 (2013); see also Stone v. Pattis,
supra, 144 Conn. App. 94–95 (‘‘Practice Book § 10-44
does not permit [a party] to add new counts in subse-
quent amended complaints following the court’s deci-
sion striking the . . . complaint in accordance with
our rules of practice’’). An example of a proper pleading
filed pursuant to Practice Book § 10-44 is one that ‘‘sup-
pl[ies] the essential allegation lacking in the complaint
that was stricken.’’ Alarm Applications Co. v. Simsbury
Volunteer Fire Co., 179 Conn. 541, 551–52 n.4, 427 A.2d
822 (1980).
In the present case, subsequent to the granting of the
defendants’ motion to strike, the plaintiff had the right
to file a substitute complaint correcting the legal defi-
ciencies of the stricken count alleging wilful violation
of the Rules of Professional Conduct. As the plaintiff
has since acknowledged, however, the Rules of Profes-
sional Conduct do not give rise to a private cause of
action. See Noble v. Marshall, 23 Conn. App. 227, 231,
579 A.2d 594 (1990). Thus, there was no ‘‘essential alle-
gation’’ or any other correction to be added that would
have made the stricken count legally sufficient.
Instead, the plaintiff filed an entirely new complaint
asserting six legal theories for relief that had not been
asserted in his stricken complaint. As Practice Book
§ 10-44 does not provide for the assertion of new legal
claims, the court properly concluded that this substitute
complaint should have been accompanied by a request
for leave to amend pursuant to Practice Book § 10-60
(a), only to be accepted at the court’s discretion. To
allow the plaintiff to state new causes of action follow-
ing the granting of a motion to strike under Practice
Book § 10-44 would nullify the procedure of requiring
court approved amendments pursuant to Practice Book
§ 10-60. Accordingly, Judge Shapiro properly held that
the plaintiff could not file new causes of action follow-
ing the granting of the defendants’ motion to strike and
that the plaintiff violated Practice Book § 10-60 in failing
to seek leave to amend his complaint.
C
We next consider whether Judge Shapiro improperly
concluded that the plaintiff, in filing the August 6, 2012
substitute complaint, disregarded the law of the case by
violating Judge Trombley’s and Judge Dooley’s previous
orders. We do not agree.
We consider whether a court correctly applied the
law of the case doctrine under an abuse of discretion
standard. ‘‘The law of the case doctrine provides that
[w]here a matter has previously been ruled upon inter-
locutorily, the court in a subsequent proceeding in the
case may treat that decision as the law of the case, if
it is of the opinion that the issue was correctly decided,
in the absence of some new or overriding circum-
stance.’’ (Internal quotation marks omitted.) Signore v.
Signore, 110 Conn. App. 126, 133, 954 A.2d 245 (2008).
In sustaining the defendants’ objection to the plain-
tiff’s August 6, 2012 substitute complaint, Judge Shapiro
found that on February 22, 2012, the plaintiff filed a
request to amend his February 21, 2012 revised com-
plaint, which was substantially premised on claimed
violations by Giuliano of the Rules of Professional Con-
duct and allegations concerning unauthorized represen-
tation of his former wife by Giuliano.11 He further found
that in objecting to the February 22, 2012 proposed
amended complaint, the defendants claimed that that
proposed amendment was untimely, as it was filed six-
teen months after the return day. The defendants also
claimed that the proposed amended complaint
expanded previous factual allegations and added new
causes of action despite the fact that the additional
events alleged by the plaintiff all occurred before the
return day. The defendants ‘‘asserted that the proposed
amendment would delay trial . . . [and] cause them
inconvenience, in that, since the inception of the matter,
they had defended the action based on one set of allega-
tions and causes of action, and should not be forced
to start over in protracted litigation.’’
Judge Shapiro also found that Judge Dooley’s memo-
randum of decision striking the first count of the plain-
tiff’s May 22, 2012 second revised complaint specifically
determined that ‘‘any count based on a violation of the
Rules of Professional Conduct is legally insufficient.’’
Judge Shapiro then stated: ‘‘In the [substitute] com-
plaint, the first count is again premised on numerous
alleged violations of the Rules of Professional Conduct
by [Giuliano] in her representation of the plaintiff’s
former wife. . . . In each of the subsequent counts of
the [substitute] complaint, the plaintiff incorporates all
of the allegations contained in the first count.12 Thus,
the core of each count is premised on alleged violations
of the Rules of Professional Conduct by [Giuliano]
. . . .13 In addition, starting with the second count, the
plaintiff adds in again the expanded allegations as to
alleged unauthorized representation [that] were first
contained in the first proposed amended complaint [of
February 22, 2012]. . . . Judge Trombley’s March 21,
2012 order sustained the defendants’ objection, [such
that] the first proposed amended complaint did not
become operative. These expanded allegations are also
incorporated by reference in each of the subsequent
counts of the currently proposed [substitute] complaint.
In the sixth count, the plaintiff expands on the allega-
tions to add that he suffered additional stress and
anguish in the course of the dissolution action.’’ (Foot-
notes added.)
It is clear in striking the substitute complaint that
Judge Shapiro concluded that the plaintiff was violating
the prior orders of both Judge Trombley and Judge
Dooley. Judge Shapiro stated: ‘‘[The] plaintiff has not
restated a cause of action by supplying the essential
allegation lacking in the complaint that was stricken.
. . . Rather, he has alleged a set of facts which are not
materially different than that single group of facts which
was the subject of Judge Dooley’s memorandum of
decision.’’ (Citation omitted; internal quotation marks
omitted.) With respect to Judge Trombley’s prior
orders, Judge Shapiro further articulated: ‘‘[C]ontrary
to Practice Book § 10-60 (a), and Judge Trombley’s
[March 21, 2012] order, in the [substitute] complaint,
the plaintiff seeks, without consent or the court’s per-
mission, to amend the complaint to add factual allega-
tions and legal theories which were not allowed by
Judge Trombley’s ruling sustaining the plaintiff’s previ-
ous objection to the plaintiff’s request to amend. . . .
[T]he plaintiff previously sought to add the expanded
allegations concerning alleged unauthorized represen-
tation, which was not permitted. In addition, the plain-
tiff previously sought to claim conspiracy to defraud
and violation of CUTPA, both of which are now included
as theories in the [substitute] complaint. Judge Trom-
bley’s ruling precluded these amendments. The plain-
tiff’s [substitute] complaint’s changes in legal theories
are even more untimely now than when Judge Trombley
sustained the defendants’ objection to the plaintiff’s
request to amend in March 2012.’’14
In summary, Judge Shapiro found that the plaintiff,
in his substitute complaint, sought to add the expanded
allegations concerning alleged unauthorized represen-
tation, which previously were not permitted by Judge
Trombley. In addition, the plaintiff sought to add counts
sounding in conspiracy to defraud and violation of
CUTPA, which Judge Trombley also had disallowed.
Furthermore, all of his proposed new counts included
references to violations of the Rules of Professional
Conduct, which Judge Dooley ruled rendered any count
legally insufficient. Finally, all of the plaintiff’s proposed
new counts were untimely in light of the time the case
had been pending and the fact that all of the new allega-
tions pertained to events that occurred prior to the
initiation of this action. After a thorough review of the
pleadings, we do not find error in Judge Shapiro’s con-
clusion that all of the newly alleged counts in the plain-
tiff’s substitute complaint contained materially similar
allegations to those in his February 22, 2012 first pro-
posed amended complaint, as rejected by Judge Trom-
bley, and the first count of his May 22, 2012 second
revised complaint, as rejected by Judge Dooley. Given
that similarity and the considerable amount of time that
had passed since the action initially was brought, it
was within Judge Shapiro’s discretion to sustain the
defendants’ objection to the plaintiff’s substitute com-
plaint.
In his claim as to the impropriety of Judge Shapiro’s
rulings, the plaintiff also argues, in conclusory fashion
with scant analysis, that he was denied due process
when Judge Shapiro struck the plaintiff’s substitute
complaint from the docket and subsequently rendered
judgment for the defendants. We disagree.
‘‘A fundamental premise of due process is that a court
cannot adjudicate any matter unless the parties have
been given a reasonable opportunity to be heard on the
issues involved . . . . It is a fundamental tenet of due
process of law . . . that persons whose . . . rights
will be affected by a court’s decision are entitled to be
heard at a meaningful time and in a meaningful man-
ner.’’ (Internal quotation marks omitted.) Stone v.
Pattis, supra, 144 Conn. App. 87 n.6.
Practice Book § 10-44 provides that ‘‘in those
instances where an entire complaint . . . has been
stricken, and the party whose pleading . . . has been
so stricken fails to file a new pleading within [a] fifteen
day period, the judicial authority may, upon motion,
enter judgment against said party on said stricken com-
plaint . . . .’’ Here, the plaintiff’s entire complaint was
stricken on July 26, 2012. On or before August 9, 2012,
the plaintiff failed to file a proper new pleading. Before
his substitute complaint was stricken, he had ample
opportunity to reply to the defendants’ objection to
it. After Judge Shapiro considered all of the plaintiff’s
arguments and ruled on the defendants’ objection, the
case fell squarely within the provision of Practice Book
§ 10-44, allowing Judge Shapiro to grant the defendants’
September 27, 2012 motion for judgment. Despite his
reliance on Practice Book § 10-44, the plaintiff had no
right under that provision to replead the August 6, 2012
substitute complaint, as that complaint was not dis-
posed of by means of a motion to strike, but rather
by objection. On September 25, 2012, Judge Shapiro’s
decision on the defendants’ objection to the substitute
complaint gave the plaintiff guidance as to a possible
way to remedy the legal and procedural deficiencies of
his pleading. He could have requested leave to file an
amended complaint, but he failed to do so before the
court ruled on the defendant’s motion for judgment,
despite the fact that a properly amended complaint was
long overdue as a result of Judge Dooley’s July 26, 2012
ruling. See Peoples v. Carberry, Superior Court, judicial
district of Stamford-Norwalk at Stamford, Docket No.
CV-10-5013413-S (June 14, 2011) (52 Conn. L. Rptr. 106)
(plaintiff who improperly filed amended complaint
alleging new causes of action in derogation of Practice
Book § 10-44 would likely be able to subsequently file
request for leave to amend absent any claim of unfair
prejudice). A period of twenty days then elapsed before
Judge Shapiro granted the defendants’ September 27,
2012 motion for judgment on October 17, 2012, after
the court considered the plaintiff’s dilatory motions for
an extension of time to plead and to reargue for the
acceptance of his August 6, 2012 substitute complaint,
which motions were not filed until October 11, 2012.
Given the ample time and opportunity afforded to the
plaintiff, it cannot be said that his due process rights
were violated.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Practice Book § 10-35 provides: ‘‘Whenever any party desires to obtain
(1) a more complete or particular statement of the allegations of an adverse
party’s pleading, or (2) the deletion of any unnecessary, repetitious, scandal-
ous, impertinent, immaterial or otherwise improper allegations in an adverse
party’s pleading, or (3) separation of causes of action which may be united
in one complaint when they are improperly combined in one count, or the
separation of two or more grounds of defenses improperly combined in
one defense, or (4) any other appropriate correction in an adverse party’s
pleading, the party desiring any such amendment in an adverse party’s
pleading may file a timely request to revise that pleading.’’
Practice Book § 10-37 (b) explains the procedure for objecting to a request
to revise, and provides in relevant part: ‘‘If the judicial authority overrules
the objection, a substitute pleading in compliance with the order of the
judicial authority shall be filed within fifteen days of such order.’’
2
The plaintiff argues that his May 22, 2012 second revised complaint
contained the expanded allegations as to unauthorized representation that
Judge Trombley had disallowed in his order of March 21, 2012, and that the
defendants’ failure to file a request to revise for a second time to object to
these expanded allegations constituted a waiver of any objection to their
inclusion. A review of the first and second revised complaints, however,
indicates that the expanded allegations as to unauthorized representation
in the first proposed amended complaint that were prohibited by Judge
Trombley are not contained in the plaintiff’s second revised complaint.
Accordingly, we find no waiver on the part of the defendants that somehow
would have negated Judge Trombley’s order.
3
The plaintiff has not appealed the order striking the first count of his
May 22, 2012 second revised complaint.
4
Practice Book § 10-44 provides in relevant part: ‘‘Within fifteen days after
the granting of any motion to strike, the party whose pleading has been
stricken may file a new pleading . . . .’’
5
Practice Book § 10-60 provides in relevant part:
‘‘(a) . . . [A] party may amend his or her pleadings or other parts of the
record or proceedings at any time subsequent to [the first thirty days after
the return day] in the following manner:
‘‘(1) By order of judicial authority; or
‘‘(2) By written consent of the adverse party; or
‘‘(3) By filing a request for leave to file such amendment, with the amend-
ment appended, after service upon each party . . . and with proof of service
endorsed thereon. . . .
‘‘(b) The judicial authority may restrain such amendments so far as may
be necessary to compel the parties to join issue in a reasonable time for trial.’’
6
Nearly a month later, on February 27, 2012, the plaintiff filed a motion
to reargue, asking Judge Trombley to reconsider the decision suspending the
February 8, 2012 deposition. By that point, the parameters of any proposed
rescheduled deposition had been greatly altered, as the court had pending
before it the plaintiff’s request for leave to file his February 22, 2012 proposed
amended complaint. It would have been impossible for the court to resched-
ule the deposition after only reconsidering the status of the parties’ dispute
as of February 8, 2012. Judge Trombley summarily denied the motion to
reargue. The plaintiff has not sought articulation of this order or appealed
the denial of the motion to reargue.
7
The plaintiff also claims that the court acted improperly in dismissing
the claim absent the defendant’s filing of a motion to dismiss. This claim
is without merit, as ‘‘[i]t is a fundamental rule that a court may raise and
review the issue of subject matter jurisdiction at any time.’’ (Internal quota-
tion marks omitted.) Stone v. Pattis, 144 Conn. App. 79, 96, 72 A.3d 1138
(2013).
8
See Walker v. Temple Surgical Center, Superior Court, judicial district
of Waterbury, Complex Litigation Docket, Docket No. X10-CV-06-5005306-S
(February 7, 2008) (objection to revised complaint considered and sustained
after granting of motion to strike); Estate of Ridgaway v. Cowles & Connell,
Superior Court, judicial district of Middlesex, Complex Litigation Docket,
Docket No. X04-CV-03-0103516-S (October 14, 2004) (objection to substitute
complaint filed after granting of motion to strike accepted and treated in
nature of request to revise by court); Dodge v. Lane, Superior Court, judicial
district of Fairfield, Docket No. CV-96-0332808-S (April 9, 1998) (request for
leave to amend complaint denied pursuant to doctrine of law of the case
based on defendant’s objection after court already had sustained objection
to same claim asserted in prior complaint).
9
Practice Book § 1-8 provides: ‘‘The design of these rules being to facilitate
business and advance justice, they will be interpreted liberally in any case
where it shall be manifest that a strict adherence to them will work surprise
or injustice.’’
10
Our Supreme Court has found it appropriate for a defendant to file
either a motion to strike or a request to revise when an allegedly improper
revised complaint replaces a stricken complaint, especially when the allega-
tions of the revised complaint appear to be the same in substance as those
of the earlier, stricken complaint. See Royce v. Westport, 183 Conn. 177,
180–81, 439 A.2d 298 (1981); Good Humor Corp. v. Ricciuti, 160 Conn. 133,
137, 273 A.2d 886 (1970); see also Parker v. Ginsburg, 85 Conn. App. 777,
781, 859 A.2d 46 (2004) (when allegations of amended complaint appear to
be same in substance as those of earlier complaint that was stricken, defen-
dant may challenge amended complaint by filing request to revise); P & L
Properties, Inc. v. Schnip Development Corp., 35 Conn. App. 46, 50, 643
A.2d 1302 (either motion to strike or request to revise may be used when
amended complaint merely restates original cause of action that was pre-
viously stricken), cert. denied, 231 Conn. 913, 648 A.2d 155 (1994). None of
these cases, however, involve a plaintiff attempting to utilize Practice Book
§ 10-44 to circumvent the sustaining of an objection to a previous request
to amend the complaint prior to the decision granting a motion to strike.
Thus, the factors to be considered in whether to permit the amendment, as
set forth in Practice Book § 10-60 and cited in Judge Trombley’s order, were
not at issue in those cases. It is undeniable that an objection to an amended
complaint is a proper vehicle to ask the court to preclude a party from filing
an amended complaint pursuant to § 10-60 for reasons such as delay or
prejudice, reasons cited by the defendants in this case. See Rizzuto v.
Davidson Ladders, Inc., 280 Conn. 225, 257–58, 905 A.2d 1165 (2006) (uphold-
ing court’s decision to sustain objection to amended complaint on grounds
of delay and prejudice).
11
The unauthorized representation allegations that first appeared in the
plaintiff’s February 21, 2012 revised complaint are expanded upon by includ-
ing three additional sentences in plaintiff’s February 22, 2012 proposed
amended complaint
12
See paragraph 7 of all counts of the substitute complaint.
13
‘‘The Rules of Professional Conduct caution those who seek to rely on
their provisions. They provide a framework for the ethical practice of law.
. . . Violation of a Rule should not give rise to a cause of action nor should
it create any presumption that a legal duty has been breached. The Rules
are designed to provide guidance to lawyers and to provide a structure for
regulating conduct through disciplinary agencies. They are not designed to
be a basis for civil liability.’’ (Internal quotation marks omitted.) Gagne v.
Vaccaro, 255 Conn. 390, 403, 766 A.2d 416 (2001). Notably, the defendants,
in their objection to the plaintiff’s request for leave to file his February 22,
2012 proposed amended complaint, alleged that the grievance panel for
the statewide grievance committee had dismissed the plaintiff’s complaint
against Giuliano on November 30, 2011, finding no probable cause. The
defendants attached a copy of the panel’s decision to their objection.
14
In his memorandum of decision on the plaintiff’s motion to reargue,
Judge Shapiro also noted that ‘‘[s]tyling the facts, as alleged in the [August
6, 2012 substitute] complaint, as supporting claims of alienation of affection
(second count); abuse of process (fourth count); vexatious litigation (fifth
count); and intentional infliction of emotional distress (sixth count), does
not change the fact that the expanded allegations were not permitted by
Judge Trombley and that the allegations are not materially different from
those addressed by Judge Dooley’s decision, which . . . is the law of the
case.’’