Opinion
FSTCV186036178S
03-20-2019
Rockstone Capital, LLC v. Morgan J. Caldwell, Jr.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Povodator, Kenneth B., J.T.R.
MEMORANDUM OF DECISION re MOTION TO DISQUALIFY (#169.00)
POVODATOR, JTR
Nature of the Proceeding
Currently before the court is the plaintiff’s motion to disqualify Judge Genuario (#169.00). The motion consists of two lines, simply requesting that he be disqualified from any further participation in this case. The substantive allegations are all set forth in the supporting brief that was filed approximately 10 days later. In lieu of an affidavit, the plaintiff attached a transcript of the proceedings giving rise to this motion. During argument on March 18, 2019, when the court pointed out that Practice Book § 1-23 requires a certificate of good faith to be filed as well, counsel represented that such a document would be filed forthwith (and such a certificate has since been filed).
Both of the self-represented defendants attended argument, and both addressed the court. Both of them expressed their belief that the court had not shown any partiality during the proceeding in question, but other than their generalized perception that the court had been fair and evenhanded, they did not address the specifics of the conduct giving rise to this motion.
The applicable standards are well-established, emphasizing an objective perspective:
The standard employed by a court reviewing a claim of judicial bias "is an objective one, not the judge’s subjective view as to whether he or she can be fair and impartial in hearing the case ... Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification." (Internal quotation marks omitted.) State v. Carlos C., 165 Conn.App. 195, 207, 138 A.3d 1090, cert. denied, 322 Conn. 906, 140 A.3d 977 (2016).
"A reviewing court is mindful that ‘adverse rulings, alone, provide an insufficient basis for finding bias even when those rulings may be erroneous.’ Schimenti v. Schimenti, supra, 181 Conn.App. 395. ‘[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.’ (Internal quotation marks omitted.) Id.
"In his brief on appeal, the defendant has identified, in isolation, words and phrases stated by the court that he contends demonstrate judicial bias and misconduct. Our reading of the transcript of the September 14, 2016 hearing demonstrates that the defendant has taken the court’s words and phrases out of context and, in doing so, has misconstrued and mischaracterized them." Tala E.H. v. Syed I., 183 Conn.App. 224, 234-35 (2018).
"[I]t is well established that [e]ven in the absence of actual bias, a judge must disqualify himself in any proceeding in which his impartiality might reasonably be questioned, because the appearance and the existence of impartiality are both essential elements of a fair exercise of judicial authority ... Nevertheless, because the law presumes that duly elected or appointed judges, consistent with their oaths of office, will perform their duties impartially ... and that they are able to put aside personal impressions regarding a party ... the burden rests with the party urging disqualification to show that it is warranted. A trial court’s ruling on a motion for disqualification is reviewed for abuse of discretion ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling ... Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done." (Internal quotation marks and citation omitted.) Hoffkins v. Hart-D’Amato, 187 Conn.App. 227, 231-32 (2019).See, also, Webster Bank, N.A. v. Frasca, 183 Conn.App. 249, 263-65 (2018).
As reflected by the submission of the transcript of the proceedings on January 30, 2019 in lieu of an affidavit, the plaintiff relies almost exclusively on the statements and actions taken on that date. The court believes it is appropriate to discuss each of the claimed transgressions, with particular emphasis on filtering out the subjective dissatisfaction of the plaintiff with the court’s comments and rulings. As discussed in the authorities above, even if a ruling were later determined to be improper, that in itself would not be indicative of bias or the appearance of bias; conversely, however, it would appear to be a significant hurdle to demonstrate that a legally proper ruling, or a ruling reflecting the proper exercise of discretion, nonetheless can be characterized as a manifestation of bias (rather than a source of frustration with an adverse ruling).
The first instance about which the plaintiff complains is when the court ordered the parties to mediation, despite the fact that the court "admittedly" had no jurisdiction to do so. (This appears to have been prior to January 30, 2019.) Assuming/accepting the representation that the court lacked the authority to do so, it is not clear how ordering parties to mediation is an indication of bias. Mediation is an integral part of the foreclosure docket, such that even if not technically applicable to this particular matter, trying to get the parties to discuss settlement— in mediation— can hardly be characterized as an outlier in terms of conduct, and has no objective suggestion of favoritism to one party or another. (More generally, see, Allstate Insurance Co. v. Mottolese, 261 Conn. 521, 531, 803 A.2d 311, 317 (2002), noting that courts favor settlement of disputes but that there should not be any coercive pressure to settle (and all that is claimed is that the court ordered mediation).) The plaintiff acknowledges that this was a "small thing" and does not attempt to explain how it reflected partiality or the appearance of partiality, instead suggesting that it was a harbinger ("portent") of things to come.
The plaintiff next complains that, on January 30, 2019, when it appeared in court ready to proceed with a hearing in damages (after the earlier granting of summary judgment as to liability), the court, sua sponte, indicated that it was considering revisiting its decision on the motion for summary judgment, potentially vacating the earlier order granting the motion. The next day, the plaintiff filed a brief (#147.00), setting forth its position with respect to the ability of the court to vacate the earlier granting of summary judgment, as well as some subsidiary issues that were identified during the course of the proceedings on January 30, 2019.
The overarching argument of the plaintiff is/was that the court lacked authority/jurisdiction to open or otherwise revisit its decision on the motion for summary judgment. Specifically, the first argument advanced was that the court lacked jurisdiction/authority, pursuant to General Statutes § 52-212 and Practice Book § 17-4, absent a motion filed by the adverse party. Recognizing that the granting of summary judgment as to liability only might be deemed interlocutory, the alternate/backup argument is that the doctrine of the law of the case discourages if not precludes the court revisiting its earlier decision, especially sua sponte.
The argument based on General Statutes § 52-212 and Practice Book § 17-4 is inapplicable, as those provisions address final judgments of the court. Granting of a motion for summary judgment, as to liability only, is interlocutory in nature, and does not come within the scope of the statute and rule. Judge Genuario specifically (and seemingly correctly) stated that the summary judgment ruling was not a final judgment, and in response, the plaintiff argued that the statute/rule applied by analogy. ("Right. I understand. I would analogize it to a final judgment and the statute [and] the Practice Book require a motion by a party.") To the extent that the plaintiff cited authorities relying on the statute and rule, those authorities are inapplicable, because they all are predicated on the existence of a final judgment, and attempting to apply procedures applicable to final judgments to a situation not involving a final judgment is to disregard the essential difference between the two. Conversely, during argument, this court identified and read from a recent Appellate Court decision, indicating that a court has inherent authority to revisit and correct earlier decisions, including revisiting a motion for summary judgment even without a formal motion being filed.
The court’s ability to reconsider prior decisions on its own accord also supports our conclusion not to reverse the court’s decision to grant the fire company’s motion to reargue. Courts can reconsider a past decision in order to correct mistakes in prior judgments. United States v. Morgan, 307 U.S. 183, 197, 59 S.Ct. 795, 83 L.Ed. 1211 (1939). "It is a power inherent in every court of justice ... to correct that which has been wrongfully done by virtue of its process."Fiano v. Old Saybrook Fire Co. No. 1, Inc., 180 Conn.App. 717, 732, 184 A.3d 1218, 1227 (2018).
Shortly after this quoted passage, the following, directly-on-point observation was made: "Thus, the court had the authority to reconsider its prior decision on summary judgment even if the fire company had not filed a motion to reargue." Id. at 732-33. (The fact that the earlier decision had been a denial of the motion for summary judgment is not a determinative factor, given the interlocutory nature of the granting of a motion for summary judgment as to liability only.)
Thus, there was authority for the court to revisit its earlier decision, and this court notes that instead of vacating the earlier ruling sua sponte, the court had brought to the parties’ attention that it was considering doing so, giving the parties an opportunity to provide input by way of argument and/or written submission.
To the extent that revisiting an earlier decision potentially involves the doctrine of law of the case, that doctrine is not a prohibition but rather a prudential rule, seeking to discourage repeated revisiting of decisions already made and to discourage judge-shopping. "The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked. In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power." Breen v. Phelps, 186 Conn. 86, 99-100 (1992). Later in that discussion, the court noted that getting the right answer should be the primary goal: (" ‘[T]he important question is not whether there was a difference but which view was right" (internal quotation marks and citation, omitted)).
The plaintiff then states that when it "wanted to present evidence at the hearing without a postponement, the court sua sponte indicated it would want testimony regarding the parties’ prior dealing regarding the settlement and forbearance agreement. Given such ‘broad hints’ on future evidential rulings is unheard of. The court was trying to pressure Plaintiff into accepting a continuance by inquiring into issues which were beyond the scope of the pleadings (and would have violated the [parol] evidence rule)."
This contention raises a number of issues, starting with the court’s inherent authority to control its docket. The court was under no compulsion to try the case in a piecemeal fashion, particularly since, as the court repeatedly emphasized, it had not decided to vacate the summary judgment ruling but rather was considering doing so. Until such time as the court ruled on that issue, no one— neither the parties nor the court— would know the issues that needed to be addressed during a trial. (The plaintiff itself observed that if the court were to vacate its earlier ruling, the pleadings would be open such that additional filings would be required for the pleadings to be closed.) Related, while courts may generally seek to obtain approval or acquiescence from all parties to a continuance of a trial date, particularly when the parties have actually appeared with the expectation that a trial will commence, the court was not required to seek or obtain approval, if it believed there to be good cause for ordering such a continuance. The unsettled state of the issues— implicitly recognized by the plaintiff when it addressed the possible need to file a handwritten reply denying special defenses in order to close the pleadings, if necessary— certainly constituted a reasonable basis on which to order a continuance, even over objection.
Further, when the plaintiff initially indicated that it wanted to present its evidence, that appeared to be part of its argument against a continuance. There later were issues raised as to whether its witness (from Maryland) who was present would be able to address all of the issues that might need to be addressed, were the trial to proceed. After such uncertainty was identified, it is far from clear on the record as to whether the plaintiff continued to be taking the position that it wanted to put on evidence that day or that it continued to oppose a continuance in light of that inability of the witness to address certain issues.
Further, this court does not read the transcript as indicating that there was a definitive statement that the court wanted "testimony regarding the parties’ prior dealing." Rather, the court indicated that, in preparation for the scheduled trial, it had reviewed the file and the motion for summary judgment, and had "concerns" about a number of issues. A summary with selected quotes puts this in context. Initially, the court stated:
I am not sure the plaintiff is entitled to summary judgment on that without some testimonial evidence and the rights of the defendant to cross examine, testify themselves in support of the special defenses in support of the amount due notwithstanding the fact that they have not been as diligent as they should have been in asserting those defenses.
After apologizing for the inconvenience, the court then stated: "And as of right now, they are only concerns. They are not findings. They are not rulings. They are not conclusions."
Later, the court inquired of counsel as to whether the witness would be able to answer certain questions if the court were to ask them: "And if [you] put a witness on the stand and I asked the witness how much was loaned back in 2003 prior to 2006, is the witness going to be able to tell me that?" That was followed by the court reemphasizing that it had not made any formal ruling or decision, but indicated that it had identified its concerns in light of the equitable nature of the proceeding.
If, in fact, certain of the concerns identified by the court implicated the parol evidence rule as suggested by the plaintiff, the plaintiff could choose not to offer such evidence, and argue that the parol evidence rule precluded consideration of matters for which that evidence might otherwise have been relevant. The court sees no indication that the court was suggesting how it might rule if there were to be an objection based on the parol evidence rule or some other appropriate/applicable legal principle.
Even if the court, in some fashion, were to be perceived as directing the plaintiff to present evidence on these issues, it is far from clear as to how identification of perceived gaps in a prior evidentiary submission objectively can be characterized as an indicium of bias— rightly or wrongly, it is providing guidance as to what evidence the court expects will be needed for the plaintiff to prove its case, Given the identified equitable nature of the proceeding, providing such guidance as to what concerns the court has or may have can only be of assistance to all parties.
Related, this court does not read the transcript as setting forth "broad hints" as to future evidentiary rulings. It is not uncommon, at least in this court’s experience, for a judge to identify issues that may need to be addressed during an upcoming proceeding, sometimes forcing parties to address an issue they may have missed and sometimes resulting in the court being informed that the issue is not relevant to the case at hand.
The plaintiff then states that with respect to the court’s later reevaluation of its decision on summary judgment, "[e]ven though the court only addressed the special defense raised by Defendant Vicki A. Ditri, it vacated the partial summary judgment against both parties without explanation (#110.05)." While it is true that the only special defense discussed was that of defendant Ditri, the court’s decision was not limited to that defense. While the court did not go into detail, the court did include the following statement after the discussion of the special defense, seemingly applicable to both defendants: "Moreover, upon review of the affidavit and the forbearance agreement the court has concerns about certain equitable considerations that are pertinent to this equitable action to foreclose a mortgage." This was consistent with the court’s comments prior to the discussion of the special defense, in which it again alluded to the concerns it had identified during the hearing, concerns applicable to both defendants.
Finally, the plaintiff identifies the comment of the court that the case had been moving "too quickly." Out of any context, the observation that a case may have been moving "too quickly" is not suggestive of bias for one side or another. In the context of this case, it would seem to be at least partially a form of self-criticism for having granted the motion for summary judgment without due consideration to all of the issues subsequently identified.
To summarize:
Assuming correctness of the claim that the court lacked the authority to compel mediation, such an order does not suggest bias for or against any particular party, but rather a recognition of the judicial preference (public policy) to have parties resolve disputes without judicial action (especially so in the foreclosure field).
Notwithstanding the repeated assertion by the plaintiff that the court lacked jurisdiction to revisit its decision to grant the motion for summary judgment, the court did have jurisdiction to do so, even in the absence of a motion by a party. The court had inherent authority to revisit an interlocutory decision that it subsequently believed may have been in error. Notably, the court did not rule on the issue of vacating its earlier decision without giving the parties an opportunity to present their arguments and authorities for or against the process and/or merits of doing so.
It was well within the court’s inherent authority to control its docket, and objectively reasonable, for the court to order a continuance/postponement of the trial, given the uncertainty as to the actual scope of the prospective trial while the issue of vacating the prior granting of summary judgment remained open.
Related, while the plaintiff initially indicated a desire to put on evidence notwithstanding the existence of uncertainty as to whether the summary judgment would be vacated, the court was not required to allow the trial to be presented in a piecemeal fashion. Further, when it became apparent that the witness might not be able to address all issues that the court had identified as being of possible interest, it was at best unclear as to whether the plaintiff still was as insistent concerning its desire to put on "some" evidence through the witness.
The plaintiff appears to have interpreted the court’s identification of its concerns as being hints as to evidentiary rulings, but without any evidentiary issues having been identified. For example, to the extent that certain evidence might be barred, as seemingly claimed by plaintiff, by the parol evidence rule, there is no apparent basis for assuming that the court had anticipated such an objection and was telegraphing its intention of overruling such an objection.
In vacating its prior decision to grant the motion for summary judgment, the court not only identified the special defense that had been filed by defendant Ditri but also outlined the various equitable considerations it had identified at the hearing, such that a more detailed explanation might well have been perceived as unneeded as to why the motion was being vacated as to defendant Caldwell.
The observation that perhaps the court had been moving "too quickly" does not, objectively, reflect bias for or against any party, and is entirely consistent with the court’s determination that it had been unduly hasty in initially granting the motion for summary judgment.
Conclusion
Other than ordering mediation, which the plaintiff has conceded is a "small thing" (trivial?), almost everything else is related to the court’s decision that it needed to revisit its decision on the motion for summary judgment. Notwithstanding the plaintiff’s repeated assertion that the court lacked jurisdiction to do so, the court did, in fact, have authority/jurisdiction to revisit its earlier ruling, even in the absence of a motion filed by the defendants; Fiano, supra . Once there was uncertainty as to whether the court would, in fact, vacate that earlier ruling, the scope of any trial was very much in doubt. The uncertainty as to the scope of any trial, coupled with the need to give the parties an opportunity to address the proposed revisiting of the summary judgment motion, required that the parties be given additional time, effectively all but requiring that the court grant a continuance/postponement of the trial itself. The identification of concerns of the court were objectively designed to give the parties information as to the issues potentially of concern to the court, such that any brief written/submitted (or evidence at trial) could properly be focused on areas of concern to the court.
The court understands that the plaintiff wanted the trial to go forward on January 30, 2019, but dissatisfaction with the ordered continuance and the court’s rationale for doing so are not bases for finding an appearance of bias. The court understands that if a party is told that its successful motion for summary judgment is going to be revisited, that is not a welcome announcement. Unfavorable actions and decisions, however, are not presumptive indicia of bias, and there is nothing about the actions identified in the plaintiff’s brief that provide an objective appearance of favoritism or bias.
The court has gone through all of these claims in order to enable it to make the ultimate determination as to whether the conduct and words of Judge Genuario, particularly on January 30, 2019, objectively indicate the appearance (if not reality) of bias, or whether such a characterization is subjective in nature, predicated on the perceived adverse nature of those rulings. The court cannot conclude that the actions of Judge Genuario "would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned." State v. Carlos C., supra .
At argument before this court, the plaintiff indicated that its submission of the transcript of January 30, 2019 was in lieu of an affidavit, a representation which the court recognized and accepted. However, to the extent that the plaintiff actually is relying upon matters not set forth in the transcript— specifically the order for mediation and the subsequent decision vacating the earlier ruling on summary judgment— while those matters may be of record in the sense that the orders are set forth in the electronic file, there is no evidentiary context for those rulings which could/should have been addressed by way of affidavit.
[A]dverse rulings, alone, provide an insufficient basis for finding bias even when those rulings may be erroneous ... [O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.Tala E.H., supra.
As recognized by this court during argument, the appellate directive that trial courts should be solicitous of self-represented parties— but without adversely affecting the rights of other parties— imposes on trial courts the obligation to engage in a balancing act, one without precise parameters. A subjective perception that a judge has been too solicitous of self-represented parties, when all or virtually all of the underlying conduct/rulings are within the authority and/or discretion of the court, cannot justify disqualification under Practice Book § 1-23. The court cannot agree that there is an objective basis to conclude that there was an appearance of impropriety in the conduct about which the plaintiff complains. The existence of adverse rulings, causing inconvenience (and the court apologized for the inconvenience), is not enough to warrant disqualification.
For all these reasons, then, the motion to disqualify is denied.