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*********************************************** 
JAMES T. COSTELLO ET AL. v. GOLDSTEIN AND

PECK, P.C., ET AL.

(AC 40465)

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

Syllabus

The plaintiffs, C and S, sought to recover damages from the defendant law

firm and two of its attorneys for, inter alia, legal malpractice in connection with their representation of the plaintiffs in two prior actions. S

previously had retained the defendants to represent her when her former

attorney brought an action against her to collect legal fees, and C previously had retained the defendants to represent him in an unrelated

dispute concerning his dealings with a condominium association. C and

S commenced the present legal malpractice action and filed a single

complaint against the defendants alleging claims related to the two

distinct matters. The trial court granted the defendants’ motion to strike

the complaint for improper joinder and rendered judgment in favor of

the defendants, from which the plaintiffs appealed to this court. Held

that the trial court properly granted the motion to strike for improper

joinder, as the plaintiffs’ action concerned two separate and distinct

transactions that were independent of each other; although the two

prior matters alleged in the complaint shared common defendants and

background information regarding the defendants and their motivations,

the question of whether the defendants committed legal malpractice

involved the defendants’ conduct regarding the individual transactions

and separate evidence was required for each transaction, each plaintiff

had a separate contract with the defendants for their representation,

as well as a separate and distinct legal claim, the plaintiffs were neither

necessary nor indispensable parties in the other’s case, as each case

could be fully and fairly resolved without the other being a party, and

the doctrines of collateral estoppel and res judicata would not bar

subsequent litigation by one of the plaintiffs once removed from the

present case; moreover, the trial court did not err in denying the plaintiffs’ motion for costs arising out of a prior appeal they had brought in

which they prevailed in the Supreme Court, as the relevant statute (§ 52-

243) authorizes the award of litigation costs only if there had been a

verdict in the plaintiffs’ favor in the trial court.

Argued September 17, 2018–officially released January 29, 2019

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).
Opinion

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 coun-
sel, 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 transactions in

order to qualify for permissive joinder. Accordingly, the

court granted the defendants’ motion to strike. The

plaintiffs claim that the court erred in granting the

motion to strike.

The plaintiffs also claim that the court erred in denying costs arising from a prior appeal by the plaintiffs

pursuant to § 52-243. The basis for the prior appeal is

as follows. The trial court previously had granted the

defendants’ motion to dismiss the complaint on the

ground that the writ of summons had not been accompanied by either a third party recognizance4 or certification of the plaintiffs’ financial responsibility, as required

by the Practice Book and by statute. Following summary

affirmance by this court, our Supreme Court reversed

and remanded for further proceedings. See Costello v.

Goldstein & Peck, P.C., 321 Conn. 244, 247–48, 259, 137

A.3d 748 (2016).

Following the remand, the plaintiffs filed a motion

for litigation costs arising from the appeal pursuant

to General Statutes §§ 52-2435 and 52-257 (d)6

, seeking

$623.63. The court denied costs sought pursuant to § 52-

243, because there had not been a verdict, but granted

costs under § 52-257 (d) in the amount of $100. This

appeal followed. The plaintiffs assert that the court

erred in finding that joinder was improper and that the

court improperly denied costs under § 52-243.

‘‘We begin our analysis by setting forth the applicable

standard of review. A motion to strike challenges the

legal sufficiency of a pleading, and, consequently,

requires no factual findings by the trial court. As a result,

our review of the court’s ruling is plenary. . . . We take

the facts to be those alleged in the complaint that has

been stricken and we construe the complaint in the

manner most favorable to sustaining its legal sufficiency. . . . It is fundamental that in determining the

sufficiency of a complaint challenged by a defendant’s

motion to strike, all well-pleaded facts and those facts

necessarily implied from the allegations are taken as

admitted.’’ (Internal quotation marks omitted.) McCart

v. Shelton, 81 Conn. App. 58, 60, 837 A.2d 872 (2004).

‘‘All persons may be joined in one action as plaintiffs

in whom any right of relief in respect to or arising out

of the same transaction or series of transactions is

alleged to exist either jointly or severally when, if such

persons brought separate actions, any common question of law or fact would arise . . . .’’ (Emphasis

added.) Practice Book § 9-4. ‘‘A motion to strike shall
be used whenever any party wishes to contest . . . the

joining of two or more causes of action which cannot

properly be united in one complaint, whether the same

be stated in one or more counts . . . .’’ Practice Book

§ 10-39 (a) (4).

The plaintiffs argue that the court improperly granted

the defendants’ motion to strike the plaintiffs’ second

amended complaint on the basis of improper joinder.

We disagree, because the plaintiffs’ underlying action

concerns two separate and distinct transactions: the

Epstein matter and the Lynwood matter. As recited

previously, the Epstein matter was litigation between

Smulley and her prior attorney, which arose initially

from a fee dispute, whereas the Lynwood matter

involved Costello’s relationship and dealings with a condominium association.

It is useful to compare the complaint in this case

with that in McCart, in which seventy-three plaintiffs

claimed that their assessments for the installation of

sewers had been excessive. McCart v. Shelton, supra,

81 Conn. App. 59–60. The complaint alleged that the

defendant city and its sewer authority had assessed

each property for the benefit conferred by the construction of a sewer and used a common method of valuation;

there was, thus, a set of common facts. Id., 60. The ‘‘real

question’’ of the complaint, however, was ‘‘whether,

in the case of each individual plaintiff, the method of

assessment was correctly applied under the particular

facts to reach a proper result.’’ Id., 62. This court held

that the individual differences in the properties were

paramount. When the matters were tried, it would be

necessary for each plaintiff to provide ‘‘individual evidence.’’ Id.

As in McCart, the complaint in the present case

alleges discrete transactions that are not dependent on

the other. The transactions share common defendants,

and the background information regarding the defendants and their alleged motivations are relevant to both

transactions. But, as in McCart, the ‘‘real question’’

involves the conduct regarding each transaction, and

separate evidence is required for each. The overlap

is, as in McCart, tangential and, therefore, joinder is

not proper.

The inability to meet the same transaction test is

dispositive of the plaintiffs’ claims. We nonetheless

briefly address the plaintiffs’ objections to the application of the rule in this case. The plaintiffs claim that

they are ‘‘necessary parties in privity’’ and therefore

joinder is required. We disagree. ‘‘Necessary parties

. . . have been described as [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which

requires it to decide on, and finally determine the entire

controversy, and do complete justice, by adjusting all

the rights involved in it. . . . [B]ut if their interests are
separable from those of the parties before the court,

so that the court can proceed to a decree, and do complete and final justice, without affecting other persons

not before the court, the latter are not indispensable

parties.’’ (Internal quotation marks omitted.) Sturman

v. Socha, 191 Conn. 1, 6–7, 463 A.2d 527 (1983). The

plaintiffs are neither necessary nor indispensable parties7

in the other’s case. Each plaintiff’s case can be

fully and fairly resolved without the other being a party.

Each of the plaintiffs had a separate and distinct legal

claim and the result of one would not necessarily govern

the result of the other.

Next, the plaintiffs assert that there was only a single

contract applicable to both plaintiffs during the time

period in question and therefore joinder was proper.

The plaintiffs claim that because the defendants allegedly agreed to represent Costello under the same ‘‘terms

and conditions’’ that governed their representation of

Smulley, there was only one contract. The fact that two

contracts may contain the same terms and conditions,

however, does not necessarily mean that the two contracts are a single contract. The pleadings allege two

distinct agreements, one for the representation of Smulley and the other, months later, for the representation

of Costello.

The plaintiffs next assert that if, as the trial court

instructed, one plaintiff were to remain alone in this

action and the other were to bring a separate action,

the doctrines of res judicata and collateral estoppel

would bar subsequent litigation. We disagree. ‘‘The doctrine of res judicata holds that an existing final judgment

rendered [on] the merits without fraud or collusion, by

a court of competent jurisdiction, is conclusive of

causes of action and of facts or issues thereby litigated

as to the parties and their privies in all other actions

in the same or any other judicial tribunal of concurrent

jurisdiction.’’ Wellswood Columbia, LLC v. Hebron, 327

Conn. 53, 65, 171 A.3d 409 (2017). A motion to strike

for improper joinder is not a determination on the merits and therefore res judicata does not apply. See, e.g.,

Bank of New York Mellon v. Mauro, 177 Conn. App.

295, 320, 172 A.3d 303 (2017) (noting in context of counterclaims that ‘‘where a court determines that the counterclaims at issue fail the transaction test of [Practice

Book] § 10-10, the appropriate remedy is not a final

judgment on the merits of those counterclaims, but

rather a judgment dismissing those counterclaims on

the ground of improper joinder with the plaintiff’s primary action, without prejudice to the defendants’ right

to replead that claim, unless it is otherwise barred,

in a separate action’’); see also Inovejas v. Dufault,

Superior Court, judicial district of New Britain, Docket

No. CV-99-0496171-S (March 13, 2000) (26 Conn. L. Rptr.

395) (‘‘The court’s granting of the motion to strike . . .

against [the plaintiffs] was . . . not upon the basis that

the plaintiff had failed to state a legally sufficient cause
of action, which necessarily tests the legal merits of

the [plaintiffs’] claim[s], but upon the strictly procedural

basis that the plaintiff had improperly joined two insufficiently related causes of action in one complaint, which

in no way tested the merits of the [plaintiffs’] claim[s].

Accordingly res judicata does not apply.’’).

Similarly, collateral estoppel would not bar subsequent litigation in the present circumstances. ‘‘[C]ollateral estoppel . . . prohibits the relitigation of an issue

when that issue has been actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim.’’

Powell v. Infinity Ins. Co., 282 Conn. 594, 600, 922

A.2d 1073 (2007). An issue is actually litigated when

‘‘properly raised, by the pleadings or otherwise, and is

submitted for determination, and is determined . . . .

An issue may be submitted and determined on a motion

to dismiss for failure to state a claim, a motion for

judgment on the pleadings, a motion for summary judgment . . . a motion for a directed verdict, or their

equivalents, as well as on a judgment entered on a

verdict.’’ 1 Restatement (Second), Judgments § 27, comment (d), p. 255 (1982). The court’s ruling that is the

subject of this appeal did not determine any substantive

issue and, thus, would not serve to bar subsequent

determination.8

The plaintiffs also assert that the trial court ‘‘failed

to consider alternatives to strike on misjoinder.’’ To

support this argument, plaintiffs cite Practice Book

§ 15-29 and claim that the trial court should have bifurcated their trial instead of granting the motion to strike.

This argument is without merit. ‘‘The exclusive remedy

for misjoinder of parties is by motion to strike.’’ Zanoni

v. Hudon, 42 Conn. App. 70, 73, 678 A.2d 12 (1996); see

also Practice Book § 11-3. Upon finding that joinder

was improper, the trial court had no alternatives to

consider.10

Finally, the plaintiffs contend that the trial court erred

in denying their motion for costs, pursuant to § 52-243,

arising from their previous appeal in this action, on

which they prevailed in our Supreme Court. The plaintiffs claimed that they incurred substantial costs in the

course of their ultimately successful appeal from the

trial court’s prior dismissal of the action on the ground

of improper recognizance. The court denied the motion

for costs pursuant to § 52-243 because there had ‘‘been

no verdict on any issue joined in favor of the plaintiff,’’

as required for the recovery of costs pursuant to that

statute. Section 52-243 provides: ‘‘If a verdict is found

on any issue joined in an action in favor of the plaintiff,

costs shall be allowed to him, though on some other

issue the defendant should be entitled to judgment,

unless the court which tried the issue is of the opinion

that the defendant had probable cause to plead the

matter found against him.’’
The plaintiffs argue that the language of § 52-243 does

not define the term ‘‘verdict,’’ and that a dictionary

definition broadly equating ‘‘verdict’’ with any decision

or result applies. We disagree. The statutory language

clearly establishes that the statute in issue provides for

costs only after verdicts in the trial court. Although the

plaintiffs’ broad definition may be correct in common

parlance, a ‘‘verdict’’ in the legal context is defined as

‘‘[a] jury’s finding or decision on the factual issues of

a case [or] . . . in a nonjury trial, a judge’s resolution

of the issues of a case.’’ Black’s Law Dictonary (7th Ed.

1999); see also Gionfriddo v. Avis Rent A Car System,

Inc., 192 Conn. 301, 306, 472 A.2d 316 (1984) (citing

§ 52-243 to show that legislature intended ‘‘verdict’’ to

include judgments rendered after court trials). Further,

§ 52-243 on its face addresses the issue of whether the

plaintiff may recover costs after prevailing on some but

not all of the issues raised.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Hereafter, Costello and Smulley Costello will be referred to collectively

as the plaintiffs, and individually by name, where appropriate. Smulley Costello will be referred to as Smulley.

2 After the court granted the motion to strike, the plaintiffs did not plead

over. The defendants then filed a motion for judgment, which the court

granted.

3 Hereafter, Kupinse, McPherson, and the law firm will be referred to

collectively as the defendants, and individually by name, where appropriate.

Kupinse and McPherson were attorneys employed by the law firm.

4

‘‘A recognizance is an obligation acknowledged before some court for

a certain sum, with condition that the plaintiff shall prosecute a suit pending

in court, or for the prosecution of an appeal. . . . . A recognizance is in effect

a bond as to its obligation.’’ (Internal quotation marks omitted.) Costello v.

Goldstein & Peck, P.C., 321 Conn. 244, 247 n.1, 137 A.3d 748 (2016), citing

Palmer v. Des Reis, 136 Conn. 232, 233, 70 A.2d 141 (1949).

5 General Statute § 52-243 provides: ‘‘If a verdict is found on any issue

joined in an action in favor of the plaintiff, costs shall be allowed to him,

though on some other issue the defendant should be entitled to judgment,

unless the court which tried the issue is of the opinion that the defendant

had probable cause to plead the matter found against him.’’

6 General Statutes § 52-257 (d) provides: ‘‘The following sums may be

allowed to the prevailing party in causes on appeal, in the discretion of the

court: (1) For all proceedings, one hundred dollars; (2) for expenses actually

incurred in printing or photoduplicating copies of briefs, a sum not exceeding

two hundred dollars; and (3) to the plaintiff in error, plaintiff in a cause

reserved, or appellant, as the case may be, the record fee, provided judgment

shall be rendered in his favor. Such costs in the Superior Court in appealed

causes and in the Supreme Court or Appellate Court shall be in the discretion

of the court on reservation of a cause for advice, or when a new trial

is granted.’’

7 We note that there is a somewhat archaic distinction between ‘‘necessary’’ and ‘‘indispensable’’ parties; see Sturman v. Socha, supra, 191 Conn.

6–7; but the distinction does not make a difference in the present case.

8 Similarly, the transactions are separate and distinct, as discussed previously in this opinion, such that neither claim would be barred on the

ground of privity. See Wheeler v. Beachcroft, LLC, 320 Conn. 146, 167, 129

A.3d 677 (2016) (‘‘[p]rivity as used in the context of res judicata or collateral

estoppel, does not embrace the relationships between persons or entities,

but rather it deals with a person’s relationship to the subject matter of the

litigation’’ [internal quotation marks omitted]).

9 Practice Book § 15-2 provides: ‘‘The judicial authority may, upon motion,

for good cause shown, order a separate trial between any parties.’’

10 The plaintiffs also assert that they were denied due process rights when

the trial court granted the motion to strike. The plaintiffs, however, had a
full and fair opportunity to be heard on the matter and, as previously stated,

were instructed that both plaintiffs were able to continue their actions separately.