Opinion
WWMCV145005838S
11-22-2016
Haiying Tao v. Court of Probate
UNPUBLISHED OPINION
MEMORANDUM OF DECISION (MOTION TO OPEN #229, MOTION FOR DISQUALIFICATION OF JUDICIAL AUTHORITY #230)
Harry E. Calmar, J.
The plaintiffs, Haiying Tao and Keith Curran (the plaintiff), filed this action with the court on May 5, 2014, appealing a decision rendered in Probate Court on April 7, 2014. This is the third of six actions brought by the plaintiff. The suits stem from a voluntary conservatorship proceeding regarding the plaintiff's mother, Eileen Curran, in the Probate Court for the Northeast District. Despite this action's complex procedural history, the court will attempt to set forth the facts relevant to the motions presently before the court.
For purposes of this memorandum, Keith Curran shall be referred to as the plaintiff, unless otherwise noted, as he is the party who filed the motions presently before the court.
The suits, all filed in the Superior Court, judicial district of Windham, are as follows: Keith Curran & Haiying Tao v. Anna Zubkova, Docket No. CV-13-5005794; Keith M. Curran & Haiying Tao v. Court of Probate, Northeast Probate District (26), Docket No. CV-14-5005817; Haiying Tao & Keith M. Curran v. Anna Zubkova, Docket No. CV-14-5005838; Keith Curran v. Anna Zubkova, Docket No. CV-15-5006089; Keith Curran v. Anna Zubkova, Docket No. CV-15-5006090; Keith Curran v. Court of Probate, Docket No. CV-16-6010391. The court also takes judicial notice of these files pursuant to Ferraro v. Ferraro, 168 Conn.App. 723, 732, 147 A.3d 188 (2016) (reasoning that court files judicially noticed as " matters of established fact, the accuracy of which cannot be questioned").
On October 1, 2015, this court, Boland, J., requested, sua sponte, that the parties brief the issue of justiciability. Specifically, the record demonstrated the possibility that the action might have been rendered moot, as the plaintiffs and the sole remaining defendant appeared to have reconciled their differences, thus bringing the court's subject matter jurisdiction into question. The plaintiffs submitted their brief to the court, through counsel, Attorney Mathew Ron Olkin. The action was subsequently dismissed by the court, Boland, J., on December 14, 2015, for lack of subject matter jurisdiction. See Memorandum of Decision, Entry No. 205. On December 31, 2015, Tao, through her attorney of record, filed a motion for reargument as to the court's decision to dismiss the action based upon lack of subject matter jurisdiction. After consideration, the motion was denied by the court, Boland, J., on January 6, 2016. See Entry No. 210.10.
Attorney Olkin is the attorney of record for the co-plaintiff Haiying Tao. Keith Curran has filed a selfrepresented appearance in this action, and is the husband of Tao. This particular brief regarding the issue of justiciability was submitted by Attorney Olkin on behalf of both plaintiffs. The sole remaining defendant, Eileen Curran, a self-represented party apparently confined to a nursing home, did not submit a brief.
Thereafter, Tao, through counsel, appealed to the Appellate Court on January 27, 2016. On April 14, 2016, the plaintiff filed a motion to open and vacate the court's judgment, followed by a motion to disqualify judicial authority on April 22, 2016, with the consent of all parties. Oral argument was heard regarding the motion for disqualification during the civil short calendar on June 20, 2016, at which time the plaintiff and Attorney Olkin presented oral argument, and this court took the matter under advisement. On July 25, 2016, the plaintiff flied a memorandum in support of the motion for disqualification.
Tao, through counsel, timely filed a motion for extension of time to file an appeal, which was granted by this court, Boland, J., on January 13, 2016.
I
MOTION TO DISQUALIFY
" 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 the 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." Practice Book § 1-23.
" A judicial authority is not automatically disqualified from sitting on a proceeding merely because an attorney or party to the proceeding has filed a lawsuit against the judicial authority or filed a complaint against the judicial authority with the judicial review council. When the judicial authority has been made aware of the filing of such lawsuit or complaint, he or she shall so advise the attorneys and parties to the proceeding and either disqualify himself or herself from sitting on the proceeding, conduct a hearing on the disqualification issue before deciding whether to disqualify himself or herself or refer the disqualification issue to another judicial authority for a hearing and decision." Practice Book § 1-22(b).
" The standard for such a determination is well established. The standard to be employed 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. In Connecticut, the disqualification of judges is governed by General Statutes § 51-39 and Canon 3[c] of the Code of Judicial Conduct. Under Canon 3[c](1) of the Code of Judicial Conduct [a] judge should disqualify himself [or herself] in a proceeding in which his [or her] impartiality might reasonably be questioned . . . 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. Thus, an impropriety or the appearance of impropriety . . . that would reasonably lead one to question the judge's impartiality in a given proceeding clearly falls within the scope of the general standard . . . The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his [or her] impartiality, on the basis of all of the circumstances." (Citation omitted; footnote omitted; internal quotation marks omitted.) State v. Shabazz, 246 Conn. 746, 768-69, 719 A.2d 440 (1998), cert. denied, 525 U.S. 1179, 119 S.Ct. 1116, 143 L.Ed.2d 111 (1999).
" [A]dverse rulings by the judge do not amount to evidence of bias sufficient to support a claim of judicial disqualification." (Internal quotation marks omitted.) State v. Bunker, 89 Conn.App. 605, 613, 874 A.2d 301 (2005), appeal dismissed, 280 Conn. 512, 909 A.2d 521 (2006). " [Attempts] essentially to relitigate . . . issues by way of a motion for disqualification and vacatur is improper. It is an elementary rule of law that 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." (Internal quotation marks omitted.) McKenna v. Delente, 123 Conn.App. 137, 145-46, 1 A.3d 260 (2010).
A
Timeliness of Motion for Disqualification
" Practice Book § 1-23 creates a mandatory procedure to be followed by any party seeking to recuse a judge." (Internal quotation marks omitted.) Olson v. Olson, 71 Conn.App. 826, 830, 804 A.2d 851 (2002). As previously noted, a motion to disqualify judicial authority is timely filed with the court when it is filed at least ten days prior to a scheduled hearing or trial, unless good cause is shown. See Practice Book § 1-23. Should the party seeking to disqualify the judge fail to follow these mandatory procedures, the claim is deemed to be waived. Wendt v. Wendt, 59 Conn.App. 656, 692, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000) (reasoning claims waived for plaintiff who waited one year after trial before filing motion to disqualify); accord Frauenglass & Associates, LLC v. Enagbare, 149 Conn.App. 103, 104 n.1, 88 A.3d 1246, cert. denied, 314 Conn. 927, 101 A.3d 273 (2014). Additionally, failure to timely object or motion for disqualification may be construed by the court as the plaintiff's consent. See Wendt v. Wendt, supra, 59 Conn.App. 692.
In this case, the motion for disqualification was filed more than four months after this court rendered its judgment of dismissal. For this reason, the claims are unseasonably raised. The plaintiff claims in his sworn affidavit, filed on July 25, 2016, that good cause may be shown for the motion's untimeliness, as he was unaware of the bases of his claim until after the court dismissed this case for lack of subject matter jurisdiction.
This claim lacks credibility, however, when considering the motion to disqualify within the context of the record before the court. The record indicates that the plaintiff, of his own accord, e-filed multiple exhibits between December 1 and December 2, 2015, unaccompanied by a proper motion (see Entry Nos. 193-200). The plaintiff's description in this electronic record, asserts Judge Boland's alleged prejudice toward the plaintiff. Furthermore, it was obvious to the parties that Judge Boland, who had presided over the proceedings leading up to the request for briefing, would address the pending question of subject matter jurisdiction, which was dispositive as to whether the court had the authority to address the merits of this appeal. At that time, neither of the plaintiffs formally objected to Judge Boland's continued participation. Neither party filed a motion for disqualification on or before December 31, 2015, the date that the motion to reargue was filed.
In short, the plaintiff knew about the alleged biases before the court dismissed the case. He is unable to demonstrate good cause for the untimely filing as he could have filed a motion for disqualification on December 1, 2015, or as late as December 31, 2015, but chose to proceed anyway. The motion for disqualification was not properly presented to the court at the time briefing was requested or concurrent with the motion to reargue. Accordingly, the claims are deemed waived. See Gillis v. Gillis, 214 Conn. 336, 343, 572 A.2d 323 (1990) (concluding claims deemed waived by failing to file motion for disqualification where apparent at hearing all motions would be heard by same judge who participated in all proceedings leading to stipulated judgments), accord Massey v. Branford, 115 Conn.App. 153, 158-59, 971 A.2d 838 (2009), cert. denied, 295 Conn. 913, 990 A.2d 345 (2010). See also Krattenstein v. G. Fox & Co., 155 Conn. 609, 615-16, 236 A.2d 466 (1967).
B
Judicial Bias
Given the nature of the plaintiff's claims, the court will address their seriousness. The essence of the plaintiff's argument is that the court is inherently biased against him resulting from the plaintiff's status as a self-represented party, and the Judge's prior business associations with individuals connected to this matter. These factors, the plaintiff argues, combined with the court's rulings adverse to the plaintiff, amount to an abuse of discretion. It is important to clarify that the abuse of discretion claim is directed to both Judge Boland, and this court.
It is noteworthy to point out that Attorney Olkin has been intimately involved in this proceeding from its near inception. It is also relevant that Attorney Olkin appears as the plaintiff's attorney of record in the following collateral civil actions filed in the Superior Court, judicial district of Windham: WWM-CV-15-5006089, Keith Curran v. Anna Zubkova, commenced June 26, 2015; and WWM-CV-16-6010391, Keith Curran, Attorney-In-Fact for Eileen Curran v. Appeal from Probate, filed April 18, 2016. See also footnote 1 of this opinion.
" [A] charge of bias [or prejudice] must be deemed at or near the very top in seriousness, for bias kills the very soul of judging-fairness . . . [A] charge of . . . bias [or prejudice] against a trial judge in the execution of his or her duties is a most grave accusation. It strikes at the very heart of the judiciary as a neutral and fair arbiter of disputes for our citizenry. Such an attack travels far beyond merely advocating that a trial judge ruled incorrectly as a matter of law or as to a finding of fact, as is the procedure in appellate practice. A judge's personal integrity and ability to serve are thrown into question, placing a strain on the court that cannot easily be erased. [Parties] should be free to challenge, in appropriate legal proceedings, a court's perceived partiality without the court misconstruing such a challenge as an assault on the integrity of the court. Such challenges should, however, be made only when substantiated by the trial record." (Internal quotation marks omitted.) McKenna v. Delente, supra, 123 Conn.App. 145-46.
" Any decision regarding disqualification of a judge for prior contact with an attorney must be made with the understanding that judges often come to the bench after having had extensive contacts with the community and the legal profession . . . The standard for disqualification must furthermore take into account the realities of modern litigation . . . A judge who arrives on the bench after years as a practicing attorney may have had countless . . . relationships. To require disqualification for a prior . . . association that is minimal and does not include a present financial interest or any other business or social relationship would place a burden on the judicial system that is in our opinion without justification." Bonelli v. Bonelli, 214 Conn. 14, 21-22, 570 A.2d 189 (1990).
The court has reviewed the evidence submitted in support of the motion for disqualification, the record, and the procedural history of this matter, and concludes that the plaintiff's claims are meritless. One of the business transactions alleged took place twelve years ago, and does not involve an attorney-client relationship, as the representation was handled by other members of the Judge's former law firm. Therefore, pursuant to Bratz v. Bratz, 4 Conn.App. 504, 495 A.2d 292 (1985), the court concludes that Judge Boland was not required to disqualify himself on these grounds.
The court notes that the lion's share of the evidence submitted in support of the motion for disqualification has not been properly authenticated. See Conn. Code Evid. § 9-1(a), commentary.
Another of the alleged prior associations involves a former employee of Judge Boland's former law firm who testified before the Probate Court in the underlying probate proceeding from which the plaintiff appeals. That individual is not a party to this appeal, has never filed an appearance on behalf of any party to this appeal, and never testified as a witness before this court. Accordingly, the court's rulings cannot possibly demonstrate bias on these grounds, and Judge Boland was not required to disqualify himself.
The final association alleged involves Judge Boland acting as counsel and fiduciary on behalf of defense counsel's wife in a real estate transaction which occurred in January 2002. The court concludes that the evidence does not demonstrate a continuing relationship, outside of the transaction itself. Moreover, the evidence does not demonstrate a present economic interest in said transaction. What is most compelling, however, is the passage of fourteen years since that transaction, and twelve years since Judge Boland was appointed to the bench. In similar cases alleging judicial bias on the basis of professional, pre-bench contacts, Connecticut's Supreme Court has determined that the passage of as little as fourteen months is a sufficient time period to overcome any possible appearance of impropriety resulting from prior associations. See Bonelli v. Bonelli, supra, 214 Conn. 21.
The bulk of the plaintiff's remaining allegations, are either vague and unverified assertions of opinion; see Despres v. Commissioner of Correction, 166 Conn.App. 572, 585, 142 A.3d 400 (2016); or an attempt to relitigate issues previously addressed by this court, amounting to a collateral attack upon the judgment. The fact that this court issued orders and rendered a judgment adverse to the plaintiff by itself does not demonstrate bias or an abuse of discretion, and fails to support a motion for disqualification. See McKenna v. Delente, supra, 123 Conn.App. 145-46. " Raising the specter of judicial bias should not be used . . . as a last resort argument to resurrect a losing appeal or to manufacture cause for remand." Wendt v. Wendt, supra, 59 Conn.App. 697.
Lastly, a careful review of the record in this case, and the records of the various civil actions collateral to this case; see footnote 1 of this opinion; demonstrates that this court has been consistently attentive to the plaintiff's self-represented status, providing the plaintiff with great latitude during the proceedings. " [S]uch leniency should not be invoked as to affect adversely the other parties' rights." Lo Sacco v. Young, 20 Conn.App. 6, 12, 564 A.2d 610, cert. denied, 213 Conn. 808, 568 A.2d 793 (1989). " Although the . . . court may have expressed frustration and impatience with the plaintiff . . . its statements were not adversarial, but rather, were consistent with its role as an impartial arbiter." Id., 13. Furthermore, the court cannot disregard the rules of practice " adherence to which is necessary in order that the parties may know their rights and in order that the real issues in controversy may be presented and determined." Id., 12. The record, therefore, reflects the court's " attempt to conduct the [proceedings] in a fair manner in order to protect the rights of all parties." (Emphasis in original.) Id. The court concludes that plaintiff was not deprived of a fair and impartial proceeding. The claims of judicial bias and abuse of discretion are without merit.
II
MOTION TO OPEN
" It is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time." (Internal quotation marks omitted.) Perugini v. Giuliano, 148 Conn.App. 861, 885 n.7, 89 A.3d 358 (2014). " Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings . . . If at any point, it becomes apparent to the court that such jurisdiction is lacking, the appeal must be dismissed." (Internal quotation marks omitted.) Kizis v. Morse Diesel Intern., Inc., 260 Conn. 46, 52, 794 A.2d 498 (2002). See also Practice Book § 10-33.
" Mootness implicates the court's subject matter jurisdiction and is thus a threshold matter . . . to resolve . . . The issue of mootness often arises in the latter stages of the appeal process, when actions of the parties have resolved the underlying dispute between them . . . It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow . . . An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot . . . The determination of whether a claim has become moot is fact sensitive, and may include the representations made by the parties at oral argument." (Citations omitted; internal quotation marks omitted.) Ayala v. Smith, 236 Conn. 89, 93-94, 671 A.2d 345 (1996); see also In Re Ann Stanley's Appeal From Probate, 80 Conn.App. 264, 266-67, 834 A.2d 773 (2003); Schiavone v. Snyder, 73 Conn.App. 712, 716, 812 A.2d 26 (2002).
As mentioned, on December 14, 2015, the court dismissed this probate appeal for mootness, a threshold matter implicating subject matter jurisdiction. See Memorandum of Decision, Entry No. 205. The plaintiffs have appealed this court's judgment, and that action is currently pending with the Appellate Court. Given the procedural posture of the present case, even if this court were to open and vacate the judgment at this time, the court would be unable to provide the relief sought by the plaintiff, because it presently lacks the authority to do so. See Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646, 656, 954 A.2d 816 (2008) (" The law of the case doctrine expresses the practice of judges generally to refuse to reopen what [already] has been decided" [internal quotation marks omitted]).
The court takes further judicial notice of the Appellate Court record indicating that while Tao initially appealed the judgment of dismissal, the plaintiff is now a party to that action having submitted a self-represented appearance on February 16, 2016.
CONCLUSION
For the foregoing reasons, the plaintiff's motion for disqualification of judicial authority is denied, and the plaintiff's motion to open and vacate judgment is denied.