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*********************************************** 
ANGELA PICARD v. THE GUILFORD

HOUSE, LLC, ET AL.

(AC 39856)

Alvord, Sheldon and Keller, Js.

Syllabus

The plaintiff in error, L, the former attorney for the plaintiff in the underlying

action, brought this writ of error to challenge the trial court’s imposition

of financial sanctions against her for her alleged misconduct while conducting an out-of-state deposition in the underlying action. L claimed,

inter alia, that the imposition of sanctions against her was barred by

res judicata and collateral estoppel because the statewide grievance

committee (committee) already had acted on the matter by issuing a

reprimand in connection with a grievance proceeding brought against

her, and that the underlying defendants should have been collaterally

estopped from seeking court imposed sanctions because they were in

privity with the committee. Held:

1. The trial court’s order imposing financial sanctions on L was proper,

as there was no privity between the underlying defendants and the

committee, and, thus, the imposition of costs on the plaintiff was not

barred by the doctrines of res judicata and collateral estoppel: the

underlying defendants were not a party to the grievance proceeding

that led to L’s reprimand and played no role in bringing L’s alleged

misconduct to the notice of the committee, which played no role in the

underlying case in which the misconduct had occurred, and not only

were the parties in the separate proceedings not the same, but their

interests in such proceedings were entirely different in that the committee was concerned with protecting the public from attorney misconduct

and the defendants were trying to recover costs and fees incurred due

to the alleged misconduct; moreover, even if there was privity between

the defendants and the committee, res judicata and collateral estoppel

could not apply to bar the sanctions imposed in that, although the trial

court did not determine the precise amount of financial sanctions on

the date that it granted the defendants’ motion for sanctions, it granted

that motion before the matter was forwarded to the committee such

that the committee’s later imposition of discipline on L could not have

precluded the trial court’s earlier imposition of sanctions on her.

2. L’s claim that the sanctions imposed against her were not proportional

to her proven misconduct and, thus, were improperly punitive was

unavailing, as the trial court reasonably could have found that the

amount of the sanctions imposed was appropriate and did not abuse

its discretion in awarding the amount of financial sanctions that it did

against L: that court imposed sanctions on L based on costs and attorney’s fees incurred by the defendants that directly stemmed from L’s

misconduct during the deposition, and it did not impose as sanctions

on L any of the costs or fees incurred in the defense of a grievance

proceeding brought by the underlying plaintiff against the defendants’

attorney, as requested by the defendants, which further supported the

reasonableness of the sanctions imposed; moreover, the court could

have found that the total amount of sanctions imposed was reasonable

because the issues raised through L’s conduct were unusual, and

required rapid and substantial legal work by the defendants’ counsel,

and because the court could have found that the complexity of the legal

issues raised reasonably resulted in more of the defendants’ lawyers

billing more time.

Argued September 15—officially released November 21, 2017

Procedural History

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).
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 supplemen-
tal 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 nonquestioning 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 courtimposed 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 alleged

misconduct that underlay the court’s order of sanctions

against her.

‘‘Res judicata, or claim preclusion, is distinguishable

from collateral estoppel, or issue preclusion. Under the
doctrine of res judicata, a final judgment, when rendered on the merits, is an absolute bar to a subsequent

action, between the same parties or those in privity with

them, upon the same claim. . . . In contrast, collateral

estoppel precludes a party from relitigating issues and

facts actually and necessarily determined in an earlier

proceeding between the same parties or those in privity

with them upon a different claim. . . . Although the

two doctrines are distinct from each other, both operate

only against the same parties or those in privity with

them. While it is commonly recognized that privity is

difficult to define, the concept exists to ensure that the

interests of the party against whom collateral estoppel

[or res judicata] is being asserted have been adequately

represented because of his purported privity with a

party at the initial proceeding. . . . A key consideration in determining the existence of privity is the sharing of the same legal right by the parties allegedly in

privity.’’ (Citations omitted; internal quotation marks

omitted.) Weiss v. Statewide Grievance Committee, 227

Conn. 802, 818, 633 A.2d 282 (1993).

‘‘In determining whether privity exists, we employ

an analysis that focuses on the functional relationships

of the parties. Privity is not established by the mere

fact that persons may be interested in the same question

or in proving or disproving the same set of facts. Rather,

it is, in essence, a shorthand statement for the principle

that collateral estoppel [or res judicata] should be

applied only when there exists such an identification

in interest of one person with another as to represent

the same legal rights so as to justify preclusion.’’ (Internal quotation marks omitted.) Ventres v. Goodspeed

Airport, LLC, 301 Conn. 194, 207, 21 A.3d 709 (2011).

See also Smigelski v. Kosiorek, 138 Conn. App. 728,

735, 54 A.3d 584 (2012), cert. denied, 308 Conn. 901, 60

A.3d 287 (2013) (‘‘[t]he crowning consideration . . . [in

regard to] the basic requirement of privity . . . [is] that

the interest of the party to be precluded must have been

sufficiently represented in the prior action so that the

application of [res judicata] is not inequitable’’ [internal

quotation marks omitted]).

While the plaintiff in error acknowledges that the

Guilford House defendants were not a party to the grievance proceeding that led to her reprimand, she argues

that they were in privity with the statewide grievance

committee because the claims litigated against her in

the grievance proceeding were identical to those for

which she was sanctioned by Judge Miller. She also

argues that the Guilford House defendants were in privity with the statewide grievance committee because the

Guilford House defendants and the statewide grievance

committee were ‘‘in the same functional relationship

with [her] when considering whether [her] conduct

. . . warrant[ed] sanctions.’’ She further argues that

because the statewide grievance committee had the

ability to impose costs and fines against her as a poten-
tial sanction, the Guilford House defendants should be

barred from recovering costs from her in the form of

sanctions imposed upon her by the trial court. No privity

exists here between the statewide grievance committee

and the Guilford House defendants; thus, we are not

persuaded by her argument.

Our Supreme Court’s decision in Weiss v. Statewide

Grievance Committee, supra, 227 Conn. 802, is instructive. In Weiss, an attorney received a reprimand from

the statewide grievance committee after the committee

concluded that he had violated the Code of Professional

Responsibility.10 Id., 809. The attorney appealed from

the reprimand to the Superior Court, which affirmed

the committee’s decision. Id., 804. The attorney then

appealed the trial court’s decision, claiming, inter alia,

that the trial court had improperly concluded that the

doctrines of res judicata and collateral estoppel, as

applied to the settlement of his civil action against his

clients, did not preclude the committee from making a

finding of attorney misconduct. Id., 804-805. Specifically, the attorney argued that because both the civil

complaint and the grievance complaint involved the

same claims and the same allegations between the same

parties on the basis of the same alleged ethical violation,

the trial court should have concluded that the civil

action had a preclusive effect on the statewide grievance committee’s decision. Id., 817. In affirming the

judgment of the trial court, our Supreme Court found

that the parties to the grievance proceeding were not

the same as, or in privity with, those in the civil action

for two reasons. First, there are no adversary parties

to grievance proceedings in the technical legal sense.

Id., 819. Second, even if the statewide grievance committee could be considered a party, the parties in the

civil action were only the attorney and his former clients, not the statewide grievance committee, which was

not in privity with any party to that action. Id.

Just as the statewide grievance committee was not

in privity with the parties in the civil action in Weiss,

the statewide grievance committee was not in privity

with the Guilford House defendants. In issuing a reprimand to the plaintiff in error, the statewide grievance

committee was performing its duty ‘‘to safeguard the

administration of justice and to protect the public from

the misconduct or unfitness of those who are members

of the legal profession.’’ (Internal quotation marks omitted.) Statewide Grievance Committee v. Johnson, 108

Conn. App. 74, 79, 946 A.2d 1256, cert. denied, 288

Conn. 915, 954 A.2d 187 (2008). The Guilford House

defendants played no role in bringing the plaintiff in

error’s misconduct to the notice of the statewide grievance committee, which played no role in the underlying

case in which the misconduct occurred. The Guilford

House defendants’ interest in moving for sanctions was

to recover costs and fees they had incurred due to the

plaintiff in error’s misconduct. Not only are the parties
not the same, but their interests in such proceedings

were entirely different. Therefore, there was no privity

between them. Because there was no privity, the imposition of costs upon the plaintiff in error was not barred

either by res judicata or by collateral estoppel, and thus

the court’s order imposing financial sanctions upon her

was proper.

Even if there was privity between the Guilford House

defendants and the statewide grievance committee, the

principles of res judicata and collateral estoppel could

not apply to bar the sanctions imposed by the trial court.

The trial court granted the Guilford House defendants’

motion for sanctions as part of its memorandum of

decision on April 3, 2014. Although the court did not

determine the amount of financial sanctions on that

date, it did detail the types of fees and costs that the

defendants had incurred in responding to the plaintiff

in error’s misconduct. Only after granting the motion

for sanctions did the trial court forward this matter to

the statewide grievance committee, which concluded

its investigation into the plaintiff in error’s misconduct

by issuing her a reprimand in February, 2015. Therefore,

the statewide grievance committee’s later imposition

of discipline upon the plaintiff in error could not have

precluded the trial court’s earlier imposition of sanctions upon her.

The plaintiff in error also argues that the sanctions

imposed against her were not proportional to her

proven misconduct, and thus were improperly punitive.

We do not agree.

We review for abuse of discretion whether the

amount of financial sanctions imposed against a party

is proportional to its sanctionable conduct. See Usowski v. Jacobson, 267 Conn. 73, 85, 836 A.2d 1167 (2003).

‘‘When reviewing claims under an abuse of discretion

standard, the unquestioned rule is that great weight is

due to the action of the trial court and every reasonable

presumption should be given in favor of its correctness

. . . . In determining whether there has been an abuse

of discretion, the ultimate issue is whether the court

could reasonably conclude as it did. . . . [T]he question is not whether any one of us, had we been sitting

as the trial judge, would have exercised our discretion

differently. . . . Rather, our inquiry is limited to

whether the trial court’s ruling was arbitrary or unreasonable.’’ (Citation omitted; internal quotation marks

omitted.) State v. Smith, 313 Conn. 325, 336, 96 A.3d

1238 (2014).

‘‘In determining the proportionality of a sanction to

a violation, we have in the past considered the severity

of the sanction imposed and the materiality of the evidence sought . . . whether the violation was inadvertent or wilful . . . and whether the absence of the

sanction would result in prejudice to the party seeking

the sanction.’’ (Citations omitted.) Forster v. Gianopou-
lous, 105 Conn. App. 702, 711, 939 A.2d 1242 (2008).

On the basis of our review of the record, we conclude

that the court reasonably could have found that the

amount of the sanctions imposed was appropriate. The

court found, following the October 19, 2015 hearing,

that the Guilford House defendants had incurred the

following costs and attorney’s fees, all directly stemming from the plaintiff in error’s misconduct during

and related to the O’Connor deposition. First, the defendants incurred legal expenses while opposing an appeal

taken by the plaintiff in error from the trial court’s

April 3, 2014 decision. The court held that, although

this appeal was taken in Picard’s name, it was brought

solely to challenge the sanctions imposed upon the

plaintiff in error, and therefore, the reasonable and necessary costs of Guilford House counsel in opposing the

appeal and seeking its dismissal were properly part of

the financial sanctions imposed upon the plaintiff in

error. Second, the defendants incurred fees for the

appearance of their counsel at the O’Connor deposition,

as well as travel and other related expenses.11 Third,

the defendants incurred the costs of obtaining the transcript of the O’Connor deposition. Fourth, the defendants incurred attorney’s fees for filing motions and

responding to motions the plaintiff in error filed following the deposition. Fifth, the defendants incurred attorney’s fees for their counsel’s attendance at the hearings

before Judge Miller and Judge Dewey concerning issues

related to the deposition and the motions for sanctions.

Sixth and finally, the defendants incurred various other

fees and expenses in responding, through counsel, to

miscellaneous, related matters.

As we discussed previously in this opinion, the court

did not impose as sanctions upon the plaintiff in error

any of the costs or fees incurred in the defense of a

separate grievance brought by Picard against the Guilford House defendants’ lead attorney. Despite the

defendants’ contention that it was the plaintiff in error

who wrongfully filed that grievance, the court held that

the record to support such a contention was inadequate

and that awarding such costs could improperly deter

future grievance filings against attorneys in Connecticut. The court’s analysis and denial of this requested

cost further supports the reasonableness of the sanctions that the court did impose upon the plaintiff in

error.

The plaintiff in error challenged as unreasonable the

amount of money and the number of lawyers that the

Guilford House defendants claimed were necessary in

responding to her misconduct, which the court

accepted in determining the amount of financial sanctions to impose upon her. The trial court could have

found that the total amount of sanctions imposed was

reasonable because the issues raised through the plaintiff in error’s conduct were unusual, and required rapid
and substantial legal work by the defendants’ counsel.

The court also could have found that the complexity

of the legal issues raised reasonably resulted in more

of the defendants’ lawyers billing more time. The court

did not abuse its discretion in imposing the amount of

sanctions it did upon the plaintiff in error.

The writ of error is dismissed.

In this opinion the other judges concurred.

1 The writ of error was properly filed in our Supreme Court, which, pursuant to Practice Book § 65-1, transferred the matter to this court.

2 The plaintiff in error served the writ of error on Judge Miller. Although

the Office of the Attorney General accepted service of the writ of error on

behalf of Judge Miller, it did not enter an appearance on his behalf or file

a brief in his defense. On appeal, the law firm of Heidell, Pittoni, Murphy &

Bach, LLP, counsel for the defendants The Guilford House, LLC and Guilford

Holding Company, LLC (Guilford House defendants) filed a brief in response

to the brief of the plaintiff in error and appeared for oral argument.

3 Dr. Sawicki was represented by separate counsel in the underlying action.

Although he filed an appearance in the writ of error, he did not file a

responding brief.

4 The record suggests that neither Judge Miller nor Judge Dewey ever

listened to the recording.

5 The court noted that the plaintiff in error knew that the conference room

she had reserved for the deposition would only be available until 3:15 p.m.,

but she did not inform opposing counsel of this time limitation until 11 a.m.

that same day.

6 Practice Book § 13-30 (c) provides in relevant part: ‘‘At any time during

the taking of the deposition, on motion of a party or of the deponent and

upon a showing that the examination is being conducted in bad faith or in

such manner as unreasonably to annoy, embarrass, or oppress the deponent

or party, the court in which the action is pending may order the officer

conducting the examination forthwith to cease taking the deposition, or

may limit the scope and manner of the taking of the deposition as provided

in Section 13-5.’’

7 Practice Book § 13-30 (b) provides in relevant part: ‘‘All objections made

at the time of the examination to the qualifications of the officer taking the

deposition, or to the manner of taking it, or to the evidence presented, or

to the conduct of any party, and any other objection to the proceedings,

shall be noted by the officer upon the deposition. . . . Every objection

raised during a deposition shall be stated succinctly and framed so as not

to suggest an answer to the deponent and, at the request of the questioning

attorney, shall include a clear statement as to any defect in form or other

basis of error or irregularity.’’

8 Practice Book § 13-27 (f) (2) provides in relevant part that ‘‘a deposition

may be recorded by videotape without prior court approval if (i) any party

desiring to videotape the deposition provides written notice of the videotaping to all parties in either the notice of deposition or other notice served

in the same manner as a notice of deposition and (ii) the deposition is also

recorded stenographically.’’

9 At oral argument before this court, the plaintiff in error’s counsel clarified

that this grievance was resolved by way of a reprimand in February, 2015.

It is outside the record whether assessing the cost of attorney’s fees was

discussed at the grievance hearing.

10 The attorney’s conduct occurred prior to the adoption of the Rules of

Professional Conduct.

11 The court considered reducing the amount of the sanctions by the

percentage of testimony from the O’Connor deposition that could be useful

in future proceedings in the underlying action. After considering the plaintiff

in error’s testimony and arguments at the October, 2015 hearing, the court

concluded that there was no evidence that any part of the deposition could

be useable, and therefore did not reduce the amount of sanctions related

to the costs of the deposition.