CIT Bank, N.A. v. Francis

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CIT BANK, N.A. v. FRANCIS—CONCURRENCE

BRIGHT, C. J., concurring. I concur with the result
and the sound reasoning of the majority. I agree that
the trial court abused its discretion in granting the
motion filed by the plaintiff, CIT Bank, N.A., for a pro-
tective order and that, on the unique and specific facts
of this case, the court’s error was not harmless.
In particular, I find it significant that the defendant
Johanna Francis was not a party to the underlying trans-
action that gave rise to the plaintiff’s foreclosure action
and, therefore, lacked knowledge of those events.
Accordingly, I agree that the defendant, in light of the
arrest of her father, James M. Francis, had a reasonable
basis to suspect that her grandparents, the decedents,
Norbert Francis and Evelyn Francis, had been defrauded
and to question the plaintiff’s involvement in that fraud.
Under these circumstances the defendant’s discovery
requests were reasonable because the best source of
information relevant to the plaintiff’s possible involve-
ment, if any, in James M. Francis’ alleged scheme was
the plaintiff itself. Furthermore, the plaintiff does not
claim that the defendant’s discovery requests were pro-
pounded in bad faith, constituted a ‘‘fishing expedition,’’
or were interposed for the purpose of delay. Nor does
the plaintiff claim that the defendant’s special defenses
that alleged fraud and duress, even though insufficiently
pleaded, were made in bad faith. Given these facts, I
agree with the majority that the defendant acted reason-
ably in seeking discovery before further alleging
improper conduct on the part of the plaintiff. Conse-
quently, I agree that the court’s improper ruling depriv-
ing her of that discovery was not harmless. I write
separately, however, to emphasize the uniqueness of
these facts and to make clear that the denial of a discov-
ery request typically will not justify a failure to plead
a legally sufficient cause of action or special defense.
Connecticut is a fact pleading jurisdiction. See Prac-
tice Book § 10-1 (‘‘[e]ach pleading shall contain a plain
and concise statement of the material facts on which
the pleader relies’’). Our rules of practice do not require,
however, that parties be certain as to the truth of the
facts that they allege. Instead, allegations must be made
‘‘with reasonable cause’’ and with a good faith belief
in their truth. See Practice Book §§ 4-2 (b) and 10-5.1
‘‘Good faith pleading requires that counsel must not
allege claims of fact which he has no reasonable
grounds to assert and cannot prove. . . . If under all
such circumstances counsel then has reasonable
grounds to file the pleading or make the representation,
he cannot later be faulted for his failure to satisfy his
burden of proof.’’ State v. Anonymous (1974-5), 31
Conn. Supp. 179, 180–81, 326 A.2d 837 (1974).
Consistent with our rules of practice, rule 3.1 of the
Rules of Professional Conduct provides that ‘‘[a] lawyer
shall not bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a basis in
law and fact for doing so that is not frivolous, which
includes a good faith argument for an extension, modifi-
cation or reversal of existing law.’’ In applying rule 3.1,
this court has stated: ‘‘[A] claim or defense is frivolous
(a) if maintained primarily for the purpose of harassing
or maliciously injuring a person, (b) if the lawyer is
unable either to make a good faith argument on the
merits of the action, or (c) if the lawyer is unable to
support the action taken by a good faith argument for
an extension, modification or reversal of existing law.’’
Brunswick v. Statewide Grievance Committee, 103
Conn. App. 601, 614, 931 A.2d 319, cert. denied, 284
Conn. 929, 934 A.2d 244 (2007). Furthermore, as the
commentary to rule 3.1 explains: ‘‘The filing of an action
or defense or similar action taken for a client is not
frivolous merely because the facts have not first been
fully substantiated or because the lawyer expects to
develop vital evidence only by discovery.’’ Rules of Pro-
fessional Conduct 3.1, commentary.
Parties and lawyers have the same good faith obliga-
tion when it comes to conducting discovery. Practice
Book § 13-2, which defines the scope of discovery, pro-
vides in relevant part that a party may seek discovery
of nonprivileged information ‘‘material to the subject
matter involved in the pending action . . . relate[d] to
the claim or defense of the party seeking discovery or
to the claim or defense of any other party . . . .’’ Dis-
covery of such information is permitted so long as ‘‘the
information sought appears reasonably calculated to
lead to admissible evidence.’’ (Emphasis added.) Prac-
tice Book § 13-2. As set forth previously in this opinion,
courts in Connecticut equate reasonable conduct with
conduct undertaken in good faith. See, e.g., State v.
Anonymous (1974-5), supra, 31 Conn. Supp. 180–81;
see also Clinton v. Aspinwall, 200 Conn. App. 205, 224,
238 A.3d 763 (‘‘[a] determination will be considered to
be in good faith unless it went so far beyond the bounds
of reasonable judgment that it seems essentially inexpli-
cable on any ground other than bad faith’’ (internal
quotation marks omitted)), cert. granted, 335 Conn. 979,
241 A.3d 704 (2020), and cert. granted, 335 Conn. 980,
241 A.3d 703 (2020). Similarly, rule 3.4 (4) of the Rules
of Professional Conduct provides that a lawyer shall
not make a frivolous discovery request in pretrial pro-
ceedings. As previously noted, this court has interpreted
‘‘frivolous’’ under the Rules of Professional Conduct
as being synonymous with a lack of good faith. See
Brunswick v. Statewide Grievance Committee, supra,
103 Conn. App. 614. Thus, whether pleading or engaging
in discovery, a party, or his or her attorney, has the
same duty to proceed in good faith. Accordingly, in
most cases, a party either has good faith both to plead
and pursue discovery as to a claim or defense or that
party lacks good faith to do either.
Moreover, discovery is used to develop claims that
have been properly pleaded, not to create them. As
noted previously, pursuant to Practice Book § 13-2, a
party is entitled in discovery to seek information that
is material to the subject matter involved in the pending
action and that is reasonably calculated to lead to the
discovery of admissible evidence. If a party has not
alleged a legally sufficient claim or defense, that claim
or defense is not part of ‘‘the subject matter involved
in the pending action . . . .’’ Practice Book § 13-2; see
also Williams Ford, Inc. v. Hartford Courant Co., 232
Conn. 559, 570, 657 A.2d 212 (1995) (‘‘[t]he issues are
framed by the pleadings and are controlled by substan-
tive law’’ (internal quotation marks omitted)). As to
whether discovery is reasonably likely to lead to the
discovery of admissible evidence, ‘‘[i]t is axiomatic that
[e]vidence is admissible only to prove material facts,
that is to say, those facts directly in issue or those
probative of matters in issue; evidence offered to prove
other facts is immaterial.’’ (Internal quotation marks
omitted.) Salmon v. Dept. of Public Health & Addiction
Services, 259 Conn. 288, 316, 788 A.2d 1199 (2002); see
also Miko v. Commission on Human Rights & Oppor-
tunities, 220 Conn. 192, 211, 596 A.2d 396 (1991) (‘‘[r]el-
evant evidence is admissible only to prove facts material
to liability; that is, facts directly in issue or probative
of matters in issue’’). Consequently, a party ordinarily
will not be harmed by the denial of discovery as to a
matter it never put at issue in its pleading.
Thus, in the typical case in which the party whose
pleading has been challenged was involved in the trans-
action or events underlying the case, that party should
be expected to sufficiently plead their cause of action
or defense on which their discovery requests are based
and should not be permitted to use the lack of discovery
as a reason not to do so. Of course, I would expect that,
in that typical case, the party to whom the discovery is
directed would object to the discovery as overly broad,
unduly burdensome, and not likely to lead to the discov-
ery of admissible evidence if it was not tethered to a
properly pleaded claim or defense.
As noted previously, however, this is not that typical
case. The defendant was not involved in the underlying
transaction, and the plaintiff never claimed that her
discovery requests were unreasonable and not made in
good faith. Consequently, for the reasons set forth in
the majority opinion, I agree that the judgment of the
trial court must be reversed because the court’s errone-
ous discovery order was not harmless.
Accordingly, I concur.
1
Practice Book § 4-2 (b) provides in relevant part: ‘‘The signing of any
pleading, motion, objection or request shall constitute a certificate that the
signer has read such document, that to the best of the signer’s knowledge,
information and belief there is good ground to support it, [and] that it is
not interposed for delay . . . .’’
Practice Book § 10-5 provides in relevant part: ‘‘Any allegation or denial
made without reasonable cause and found untrue shall subject the party
pleading the same to the payment of such reasonable expenses, to be taxed
by the judicial authority, as may have been necessarily incurred by the other
party by reason of such untrue pleading . . . .’’