Opinion
MMXCV186021102S
02-22-2019
BARCLAYS BANK DELAWARE v. Diana L. BAMFORD
UNPUBLISHED OPINION
OPINION
Suarez, J.
By motion filed on December 19, 2018, Attorney Pat Labbadia III, counsel for the defendant, Diana L. Bamford, moved to disqualify the Honorable Matthew E. Frechette from this case and any other matter in which Attorney Labbadia appears as counsel of record. The court heard oral argument on the motion on January 2, 2019. Attorney Labbadia filed a supplemental brief in support of his motion on January 17, 2019, and the plaintiff filed a reply on January 27, 2019. The court makes the following findings and orders.
I. Findings
Currently before the court is a collection case brought by Barclays Bank Delaware to collect and recover the credit card debt owed by the defendant. The complaint was filed on May 7, 2018, and the defendant filed an appearance on June 25, 2018, through his counsel, Attorney Labbadia. A series of motions were filed by both parties from September 2018 to December 2018, which were ruled on by the presiding judge, Judge Frechette. After Judge Frechette had already ruled on several of the parties’ motions, Attorney Labbadia, on October 9, 2018, filed a motion to reargue/reconsider three motions: his own request to revise, the plaintiff’s objection to defendant’s request to revise, and his objection to the plaintiff’s motion for an extension of time. In his motion to reargue/reconsider, Attorney Labbadia raised several arguments in support of his position including that he had "been involved in prior litigation against the Hon. Matthew Frechette’s father and indirectly him, and the circumstances of that involvement have been set forth in a prior case in the Judicial District of New Haven at New Haven." Attorney Labbadia further claimed in his motion to reargue/reconsider that as a result of the prior litigation, another judge ruled on the pending motions and that Judge Frechette had not been involved in any of the cases in which Attorney Labbadia was counsel. On October 15, 2018, Judge Frechette denied the defendant’s motion. On November 19, 2018, Attorney Labbadia filed a notice that no action can be taken. In his notice, Attorney Labbadia asserted that he intended to file a motion to recuse Judge Frechette in the current matter and any other matter in which Attorney Labbadia is involved in any capacity in order to avoid any appearance of impropriety. On December 12, 2018, the court, Suarez, J., scheduled Attorney Labbadia’s notice of no action can be taken for a hearing and a hearing was held on December 12, 2018. At that hearing, the court, Suarez, J., ordered that if Attorney Labbadia was to file a motion to disqualify Judge Frechette, he was to do so on or before December 19, 2018. On December 19, 2018, Attorney Labbadia filed a motion to disqualify Judge Frechette accompanied by a memorandum of law and certification of good faith. The plaintiff then filed an objection to the defendant’s motion to disqualify on December 21, 2018. On January 2, 2019, the court held a hearing where evidence and testimony were presented, and on January 17, 2019, Attorney Labbadia submitted an additional supplemental memorandum of law in support of his motion. Thereafter, on January 29, 2019, the plaintiff filed a further objection to the defendant’s motion.
The New Haven matter Attorney Labbadia refers to is Value Health Care v. PARCC Health Care, Superior Court, judicial district of New Haven, Docket No. NNH-CV-11-5033728-S (July 9, 2012, Silbert, J.).
In his December 19, 2018, motion Attorney Labbadia moves to disqualify and/or recuse Judge Frechette from this and any other case in which he appears as counsel of record in order to avoid the appearance of impropriety. The reason for the alleged impropriety is that prior to becoming a judge, Judge Frechette practiced law with his father, Attorney Roger Frechette. In 1997, Attorney Roger Frechette filed a lawsuit naming, among others, Attorney Labbadia as a defendant. See Chiocchio et al. v. Brian Alden et al., Superior Court, judicial district of New Haven, Docket No. CV-97-0395862-S (June 27, 2007, Lager, J.). Attorney Labbadia alleges that on one occasion in that case he had a heated telephonic conversation with now Judge Frechette. He claims that "there was substantial animosity and discord between the law firm of Frechette & Frechette and its members (including now Matthew Frechette), and the undersigned counsel as an individual defendant in that matter, and also in its related matters." Attorney Labbadia believes this animosity is still present.
Attorney Labbadia previously brought a motion to disqualify Judge Frechette on the same grounds in 2012. See Value Health Care v. PARCC Health Care, Superior Court, judicial district of New Haven, Docket No. NNH-CV-11-5033728-S (July 9, 2012, Silbert, J.). In that case, Attorney Labbadia sought to disqualify Judge Frechette from hearing any aspect of any case in which he was listed as counsel due to a supposed bias. Attorney Labbadia filed this motion as a result of his disenchantment and disdain with adverse rulings on motions for extension of time heard by Judge Frechette. He thought that Judge Frechette had issued the adverse rulings due to "at least one very unpleasant exchange" he had with Judge Frechette in 1997, when the judge was an attorney in practice with his father and opposing counsel to Attorney Labbadia. The 2012 motion to disqualify was heard by Judge Silbert, who found on July 9, 2012, that neither party had more than a vague recollection of the nature of this unpleasant exchange and is not able to provide any additional details expounding on the content of these conversations. Judge Silbert further found that the only evidence provided by Attorney Labbadia to question the impartiality of Judge Frechette was this "unpleasant exchange" that happened "sometime between five and fifteen years ago." In addition, Judge Silbert found that Judge Frechette’s father, Attorney Roger Frechette, was individually the counsel of record that appeared in the previous matter with Attorney Labbadia. The firm as a whole was not involved in the adjudication of that case, nor does Attorney Labbadia argue that Judge Frechette was involved in the prosecution of that case outside of their unpleasant conversation. Judge Silbert maintained that there was no reasonable basis for bringing this motion. In denying this motion, Judge Silbert held that "the only appearance of impropriety to be avoided in deciding this motion is that which would be created if an attorney were to be permitted to have a judge disqualified because that attorney was unhappy with a couple of the judges’ rulings and was able to dredge up a faded recollection, lacking in any detail, substance or corroboration whatsoever, of a claimed ‘very unpleasant exchange’ when the judge was still an attorney, sometime between five and fifteen years ago, in a case in which the judge’s father was counsel of record."
In the present case, Attorney Labbadia again seeks to disqualify Judge Frechette for bias due to Judge Frechette’s adverse rulings, including a denial of a motion for extension of time. This current motion to disqualify incorporates the same substantial arguments and allegations as were present in Attorney Labbadia’s previous motion to disqualify. Although Judge Silbert denied that motion, Attorney Labbadia claims that Judge Silbert made an incorrect ruling and that his position should be reconsidered in the interest of preventing an appearance of impropriety. Attorney Labbadia now claims that Judge Silbert’s July 9, 2012, order denying the motion to disqualify Judge Frechette "was not his best work."
The basis of his current motion is again based on a previously combative conversation with Judge Frechette when he was an attorney in the same firm as his father, Attorney Roger Frechette. Additionally, Attorney Labbadia claims that a lawsuit filed against him by Attorney Roger Frechette should further bar his son, Judge Frechette, from being involved in any future proceedings with counsel. He further argues that there is substantial animosity between the parties, due to the nature of the father and son law firm, and those feelings should be imputed upon Judge Frechette.
II. DISCUSSION
A charge that a judge is not impartial implicates not only the fundamental concept of a fair trial, but the very integrity of the trial court. See Wendt v. Wendt, 59 Conn.App. 656, 691-97, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000). "Such motions are treated extremely seriously, so much so that the lawyer codes [of professional responsibility] express a special obligation not to criticize judges through false accusation ... Practice Book § 1-23 exists to ensure that motions to disqualify judges are made on solid grounds substantiated by the trial record and not for any improper reason." (Internal quotation marks omitted). Burton v. Statewide Grievance Committee, 80 Conn.App. 536, 541, 835 A.2d 1054 (2003), cert. denied, 268 Conn. 907, 845 A.2d 410 (2004). For the following reasons, Attorney Labbadia’s motion to disqualify Judge Frechette is denied.
A. Collateral Estoppel Bars the Defendant from Relitigating the Issue
As an initial matter, Attorney Labbadia’s motion to disqualify is barred by collateral estoppel, as Attorney Labbadia previously filed the same motion against Judge Frechette six years ago. "The doctrines of res judicata and collateral estoppel protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation." Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988). "[C]ollateral 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 ... An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined ... An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered." Doyle v. Universal Underwriters Ins. Co., 179 Conn.App. 9, 14, 178 A.3d 445 (2017). "For collateral estoppel to apply, the issue concerning which relitigation is sought to be estopped must be identical to the issue decided in the prior proceeding." Pollansky v. Pollansky, 162 Conn.App. 635, 651, 133 A.3d 167 (2017).
The motion to disqualify Judge Frechette is barred by the doctrine of collateral estoppel because the same motion, encompassing the same issues, was already adjudicated by Judge Silbert in Value Health Care v. PARCC Health Care, supra, Superior Court, Docket No. NNH-CV-11-5033728-S. Allowing Attorney Labbadia to relitigate the same matter previously decided by Judge Silbert would undermine Judge Silbert’s ruling and is wholeheartedly unnecessary. Simply asserting that Judge Silbert’s prior decision was wrongfully decided and "not his best work" does not allow Attorney Labbadia to relitigate the same issue, based on the same facts. Unfavorable rulings, or rulings an attorney may feel are incorrect, do not afford that attorney an opportunity to have that same matter reheard at a later date.
Accordingly, the defendant’s motion to disqualify Judge Frechette is hereby barred by collateral estoppel.
B. The Defendant’s Motion to Disqualify is Untimely and Therefore Waived
Even if Attorney Labbadia’s motion is not barred by collateral estoppel, by failing to timely file his motion to disqualify, he constructively waived his privilege. Practice Book § 1-23 sets forth the requirements for a motion to disqualify judicial authority. "A motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of counsel of record that the motion is made in good faith. The motion shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time." (Emphasis added.) Practice Book § 1-23. Our courts have held that "[a] litigant must raise the question of disqualification in a timely and appropriate manner ... or the claim will be deemed to have been waived." (Citations omitted.) DeMatteo v. DeMatteo, 21 Conn.App. 582, 591, 575 A.2d 243, cert denied, 216 Conn. 802, 577 A.2d 715 (1990). When a claim of judicial bias is raised, "[a]ll that is clear [from Canon 3 C of the Code of Judicial Conduct] is that the litigant must [raise] the question of disqualification in a timely and appropriate manner." (Internal quotation marks omitted.) Jazlowiecki v. Cyr, 4 Conn.App. 76, 78, 492 A.2d 516 (1985). "Claims alleging judicial bias should be raised at trial by a motion for disqualification or the claim will be deemed to be waived ... A party’s failure to raise a claim of disqualification at trial has been characterized as the functional equivalent of consenting to the judge’s presence at trial." Tate v. Safeco Ins. Co. of Illinois, 157 Conn.App. 432, 451-52, 116 A.3d 386 (2015).
"Our Supreme Court has criticized the practice whereby an attorney, cognizant of circumstances giving rise to an objection before or during trial, waits until after an unfavorable judgment to raise the issue. [The Appellate Court has] made it clear that [it] will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial." Weyher v. Weyher, 164 Conn.App. 734, 749, 138 A.3d 969 (2016); see also Tate v. Safeco Ins. Co. of Illinois, supra, 157 Conn.App. 452; McGuire v. McGuire, 102 Conn.App. 79, 83, 924 A.2d 886 (2007). "[T]he rationale for this rule is that parties cannot be allowed to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial." (Internal quotation marks omitted.) Barca v. Barca, 15 Conn.App. 604, 608, 546 A.2d 887, cert. denied, 209 Conn. 824, 552 A.2d 430 (1988).
In the present case, Attorney Labbadia has failed to comply with the requirements of Practice Book § 1-23 because he failed to file his motion to disqualify within ten days of the case being called for trial or a hearing. By failing to comply with the requirements of § 1-23, Attorney Labbadia has constructively waived the opportunity to bring a claim to disqualify judicial authority. Judge Frechette issued his first ruling in the case on September 24, 2018. Attorney Labbadia first raised the issue of Judge Frechette’s potential bias in a pleading on October 9, 2018, and again in another pleading on November 19, 2018. Attorney Labbadia did not file his motion to disqualify until December 19, 2018, almost three months after Judge Frechette issued his first ruling. It is clear from the record that Attorney Labbadia allowed Judge Frechette to rule on numerous motions before finally filing the present motion to disqualify. Attorney Labbadia has failed to provide any justifiable explanation to excuse his defection filing and the court similarly does not find any good cause to support his late submission. The failure to properly file a motion to disqualify acts as a waiver that prevents the party from later raising the issue. In failing to timely file his motion to disqualify, Attorney Labbadia consented to Judge Frechette presiding over the entire matter, and has waived any opportunity to further raise the issue. See Tate v. Safeco Ins. Co. of Illinois, supra, 157 Conn.App. 451-52.
Accordingly, Attorney Labbadia has waived his claim of bias by not timely filing the present motion.
C. Practice Book § 1-22 Provides No Basis for a Finding of Bias
Even if Attorney Labbadia’s claim were not untimely or barred by collateral estoppel, his motion would still fail on the merits. Practice Book § 1-22 provides in relevant part that: "A judicial authority shall, upon motion of either party or upon its own motion, be disqualified from acting in a matter if such judicial authority is disqualified from acting therein pursuant to Rule 2.11 of the Code of Judicial Conduct ..." Rule 2.11 of the Code of Judicial Conduct further provides in relevant part that: "A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned including, but not limited to the following circumstances: (1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer ..." A plaintiff claiming judicial bias "is not required to demonstrate actual bias in order to prevail on a claim of a violation of [the Judicial Canon]. The plaintiff will meet his burden if he can prove that the conduct in question gave rise to a reasonable appearance of impropriety." McGuire v. McGuire, supra, 102 Conn.App. 84. "Disqualification of a trial judge is not dependent upon proof of actual bias ... The controlling standard is whether a reasonable person who is aware of all the circumstances surrounding the judicial proceeding would question the judge’s impartiality." (Citations omitted; internal quotation marks omitted.) Barca v. Barca, supra, 15 Conn.App. 607. "The fact that a trial court rules adversely to a litigant, even if some of these rulings were to be determined on appeal to have been erroneous, does not demonstrate personal bias." Bieluch v. Bieluch, 199 Conn. 550, 553, 509 A.2d 8 (1986). "Vague and unverified assertions of opinion, speculation and conjecture cannot support a motion to recuse nor are they sufficient to warrant an evidentiary hearing on the same." DeMatteo v. DeMatteo, supra, 21 Conn.App. 591.
While the baseline for a finding of judicial bias is whether the judge’s impartiality may reasonably be questioned, Attorney Labbadia fails to provide any evidence to meet the required threshold. There is nothing in the record indicating that Judge Frechette has provided even a minute appearance of impropriety, nor would a reasonable person question his impartiality. This motion is completely lacking factual support and is instead riddled with unsubstantiated, opinionated accusations aimed at achieving some personally motivated goal. Attorney Labbadia again maintains that Judge Frechette is incapable of being impartial because he is the son and former law partner of an attorney who once brought suit against Attorney Labbadia. He asserts that he had a conversation with then Attorney Frechette in which he was "rude, combative, and unprofessional ... He raised his voice, made a colorful remark, and abruptly ended the telephone call." Attorney Labbadia has had the opportunity to further expound on these conversations and has failed to do so for the court. Outside of this single conversation, Judge Frechette never took part in any prior case or lawsuit involving Attorney Labbadia. The mere fact that Judge Frechette’s father was opposing counsel and filed suit against Attorney Labbadia does not impute a finding of bias on Judge Frechette solely because of his relationship with his father. These facts alone do not give rise to a reasonable appearance of impropriety.
There is nothing to show that Judge Frechette has demonstrated animosity towards Attorney Labbadia, but rather it is apparent that Attorney Labbadia still holds resentment towards Judge Frechette. It is not proper for an attorney to disqualify a judge solely because he does not agree with or dislikes a particular judge. The allegedly inflammatory conversation between Judge Frechette and Attorney Labbadia occurred sometime in 1997, over twenty years ago. Allowing an attorney to use a single inflammatory conversation as a precursor for excluding a judge from ever hearing a case in which they are counsel is meritless and would result in absurd results. This would allow any attorney to preclude and disqualify a judge from hearing a case in which they are counsel, solely because they once engaged in a disagreement. That is hardly the rationale behind § 1-22 and Rule 2.11. An adverse or hostile conversation between attorneys, without more, does not provide an adequate basis for a motion to disqualify judicial authority and fails to fall within Rule 2.11 of the Code of Judicial Conduct.
Accordingly, even if this motion were to advance to a decision on its merits, the motion to disqualify would still be denied.
III. CONCLUSION
For the foregoing reasons, Attorney Labbadia’s Motion for Disqualification of Judicial Authority # 143, is hereby:
DENIED
SO ORDERED