Opinion
X03HHDCV165042400S
06-06-2017
Sylvester Traylor v. State of Connecticut et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE AWWA AND CBHA'S MOTION FOR SUMMARY JUDGMENT (#148.00)
Ingrid L. Moll, Judge.
Before the court is the motion for summary judgment dated June 21, 2016, filed by defendants Bassam Awwa, M.D. (" Awwa") and Connecticut Behavioral Health Associates, P.C. (" CBHA") (together, " the Awwa defendants"), directed to all counts against them, namely, counts two through six of the plaintiff's amended complaint dated April 19, 2016 (" motion") (#148.00). Specifically, the Awwa defendants claim that they are entitled to judgment as a matter of law on res judicata grounds. The plaintiff, Sylvester Traylor (" the plaintiff" or " Mr. Traylor"), did not file a memorandum of opposition and did not appear at the February 6, 2017 hearing on the motion. For the reasons stated below, the court grants the Awwa defendants' motion.
Mr. Traylor is a self-represented party.
I
BACKGROUND
The instant action is one of more than a dozen lawsuits brought by the plaintiff stemming from the tragic death of his late wife, Roberta, in 2004. The plaintiff alleges, among other things, that Roberta's psychiatrist, Awwa, and his practice, CBHA, acted negligently in their psychiatric treatment of Roberta and spoliated evidence after her death. The plaintiff alleges that defendants Robert Knowles, Neil Knowles, and Advanced Telemessaging (collectively, the " Knowles defendants"), who at the relevant times operated a telephone answering service for Awwa's practice, also spoliated evidence after Roberta's death by destroying records, including information concerning telephone calls placed by the plaintiff to Awwa shortly before her death.
See Traylor v. Awwa, Superior Court, judicial district of New London, Docket No. KNL-CV06-5001159-S; Traylor v. State, Superior Court, judicial district of New London, Docket No. KNL-CV09-4009523-S; Traylor v. Steward, Docket No. 3:10-CV-00639(CFD) (D.Conn.); Traylor v. Awwa, Docket No. 3:11-CV-00132(AWT) (D.Conn.), upon remand, FST-CV11-5015139-S; Traylor v. Gerratana, Superior Court, judicial district of Hartford, Docket No. HHD-CV11-5035895-S; Traylor v. Hammond, Docket No. 3:12-CV-01625(AWT) (D.Conn.); Traylor v. State, Superior Court, judicial district of New London, Docket No. KNL-CV13-5014624-S; Traylor v. Cosgrove, Superior Court, judicial district of New London, Docket No. KNL-CV13-5014602-S (withdrawn); Traylor v. State, Docket No. 3:13-CV-00663(AWT) (D.Conn.); Traylor v. Eric Parker, Superior Court, judicial district of Waterbury, Docket No. UWY-CV13-5017115-S; Traylor v. Eric Parker, Docket No. 3:13-CV-01828(AWT) (D.Conn.); Traylor v. Waterford, Docket No. 3:13-CV-00507(AWT) (D.Conn.); Traylor v. Kopp, Superior Court, judicial district of New London, Docket No. KNL-CV-154012676-S.
This is not a comprehensive summary of the allegations contained in the 106-page complaint. For more detail, the reader is referred to the complaint itself.
In order to put the instant action in its proper context, the court recites summaries of the plaintiff's 2006 and 2011 cases.
2006 Action
The plaintiff brought his initial suit in 2006. See Traylor v. Awwa, Superior Court, judicial district of New London, Docket No. CV 06-5001159-S, (" 2006 Action"). The court in the 2011 Action, described below, summarized the history of the 2006 Action as follows:
In the 2006 case the plaintiff alleged that Awwa was negligent in several ways including that he prescribed certain medications which were inappropriate for Roberta and that he failed to adequately inform her of the risks associated with the medications he prescribed, and that he failed to supervise, monitor or otherwise follow through with the plaintiff concerning his wife's suicidal behavior. The plaintiff specifically alleged that he called Awwa and CBHA, in the days leading up to Roberta's death, concerning her indications that she was suicidal and a danger to herself but that the plaintiff received no return calls. The plaintiff specifically alleged that Awwa and CBHA were negligent in that they refused to return his phone calls concerning the increased suicidal behavior of Roberta. The plaintiff's complaint was brought both in his individual capacity and his capacity as duly appointed administrator of the estate of his late wife.
On July 12, 2010 the plaintiff filed an Amended Complaint in the 2006 case which sounded in eight counts. The first six counts of that Amended Complaint were based upon various medical malpractice claims against each of the 2006 defendants. The Seventh Count alleged that the 2006 defendants (which did not include the Knowles defendants) had spoliated evidence and the Eighth Count alleged that the 2006 defendants had violated the Connecticut Unfair Trade Practices Act (CUTPA). On July 29, 2010 then Judge Trial Referee, Thomas F. Parker entered an order dismissing Counts One through Six of the July 12, 2010 Amended Complaint. On August 11, 2010 Judge Parker filed a Memorandum of Decision articulating the basis for his order dismissing Counts One through Six. While the court will not recite the details of the Judge Parker's August 11, 2010 Memorandum of Decision it is fair to say that a significant component of the twenty-eight-page decision was the Court's view that the original complaint did not contain a certificate that complied with Conn. Gen. Stat. § 52-190a which required a certificate of good faith with a medical opinion. The Court's decision acknowledged that a medical opinion dated October 18, 2006 was obtained on that date. The Court's decision was based on its determination that the subsequently obtained medical opinion could not rescue the plaintiff's action that was brought approximately four months prior to the time that the plaintiff obtained the medical opinion. It is fair to say that the plaintiff disagrees with the substance of the Court's August 11, 2010 Memorandum of Decision. Subsequently, the 2006 Court granted the defendant's Motion to Strike the seventh and eighth counts of the Amended Complaint. On October 5, 2010 the court (Parker, J.T.R.) denied the defendants' Motions for Non-Suit and on February 15, 2011 the court (Parker, J.T.R.) dismissed counts seven and eight.
The plaintiff filed an appeal to the Appellate Court but that appeal was dismissed by the Appellate Court on December 19, 2011. The plaintiff filed a petition for certification to the Connecticut Supreme Court on December 29, 2011 but that petition was denied by the Connecticut Supreme Court on January 27, 2012, effectively ending the 2006 case.(Footnote omitted.) Traylor v. Awwa, No. FST-CV11-5015359-S, 2016 WL 7165563, at *1-2 (Conn. Super. Oct. 26, 2016) (Genuario, J.).
2011 Action
Because the instant motion for summary judgment is based on Sylvester Traylor v. Bassam Awwa et al., Docket No. FST-CV11-5015359-S, Judicial District of Stamford-Norwalk (" 2011 Action"), the court recites the following procedural background:
In January 2011 . . . the plaintiff brought [the 2011 Action] returnable to the New London Superior Court against multiple defendants. That complaint alleged, in part, that the various state actors and certain private parties had discriminated against the plaintiff in violation of federal law because of his inter-racial marriage to Roberta. (The complaint alleges that the plaintiff is black and Roberta was white.) The case was removed to the United States District Court for the District of Connecticut on January 25, 2011 (See Traylor v. Awwa et al., United States District Court for the District of Connecticut (New Haven) Docket #3:11cv-00132-AWT). After various proceedings in federal court the case was dismissed or judgment entered in favor of ten of the thirteen defendants. The United States District Court then remanded the remaining state court claims against the Knowles defendants for adjudication in state court on March 23, 2015 (federal court docket #431) which order was confirmed after re-argument on June 10, 2015 (federal court docket #442) . . .(Footnote in original; second footnote omitted.) Traylor v. Awwa, No. FST-CV11-5015359-S, 2016 WL 7165563, at *2 (Conn. Super. Oct. 26, 2016).
The defendants included Bassam Awwa, M.D.; Attorney Donald Leone; Richard Blumenthal, Connecticut Attorney General; the City of New London; Joseph D'Alesio of the Connecticut Judicial Branch; the New London Criminal Division for the State of Connecticut Attorney's Office; Dr. Robert Galvin, Commissioner of the Connecticut Department of Public Health and the Knowles defendants.
While the 2011 Action was pending in federal court, the district court granted, among other things, a motion to dismiss filed by the Awwa defendants, which was directed to all counts against them. See Traylor v. Awwa, No. 3:11-cv-00132(AWT), Ruling on Motion to Dismiss (D.Conn. Sept. 26, 2012) (Thompson, J.). (A copy of the district court's decision was attached as Exhibit C to the Awwa defendants' moving papers. (See #152.00.)) Said decision is further discussed below.
The remand to the Superior Court following the federal district court's decision--for proceedings involving the Knowles defendants--is discussed in the memorandum of decision on the Knowles defendants' motion to dismiss, rendered simultaneously herewith. Because that aspect of the procedural history of the 2011 Action is not relevant to the adjudication of the instant motion, it is not repeated herein.
Instant Action
The plaintiff commenced the instant action by way of summons and complaint on or about April 6, 2016, made returnable to the judicial district of Stamford-Norwalk. On June 6, 2016, the action was transferred to the judicial district of Danbury. (#103.03.) In his 106-page amended complaint dated April 19, 2016 (#112.00) (" amended complaint"), which is the operative complaint, the plaintiff asserts claims against: (1) the State of Connecticut, the Connecticut Appellate Court, Connecticut Superior Court Judges Emmet L. Cosgrove, Terence A. Zemetis, Kari A. Dooley, and James W. Abrams, and former Connecticut Superior Court Judge Thomas F. Parker (" Parker") (collectively, " the State defendants"); (2) the Awwa defendants; and (3) the Knowles defendants. Specifically, the plaintiff asserts the following counts: (1) count one--due process and equal protection violation, as to the State defendants; (2) count two--fraudulent concealment, as to the Awwa defendants and the Knowles defendants; (3) count three--spoliation, as to the Awwa defendants and the Knowles defendants; (4) count four--violation of the Connecticut Unfair Trade Practices Act (" CUTPA"), as to CBHA and Advanced Telemessaging; (5) count five--intentional infliction of emotional distress, as to the Awwa defendants, the Knowles defendants, and Parker; and (6) count six--loss of consortium, as to the Awwa defendants and the Knowles defendants.
In response to the plaintiff's amended complaint, all defendants filed either a motion to dismiss or a motion for summary judgment in June 2016. Such motions included the instant motion for summary judgment filed by the Awwa defendants on June 21, 2016, along with a supporting memorandum and accompanying exhibits. (#148.00-152.00.) On July 22, 2016, Mr. Traylor moved for a 90-day extension of time to file responses to defendants' motions. (#172.00.) Such motion, had it been granted at the time of its filing, would have required Mr. Traylor to file his responses in October 2016. The undersigned's assignment to the complex litigation (X03) docket commenced in September 2016. Thereafter, the undersigned became aware of Mr. Traylor's pending motion for extension of time and granted it, giving him an additional month on top of the lengthy 90-day extension of time he had requested. (#172.86.) Thus, Mr. Traylor's deadline to respond to the defendants' respective motions to dismiss and/or for summary judgment became November 23, 2016, and a hearing date was set for December 20, 2016. (Id. )
On November 23, 2016, Mr. Traylor did not file the required briefs. Instead, he filed (1) a motion to open and vacate the foregoing court order (#172.86) and (2) a motion entitled " motion for an extension of time to plead." (##183.00 and 184.00.) Because those motions requested that the court vacate its November 2, 2016 order (#172.86), which granted Mr. Traylor essentially a four-month period to prepare opposition briefs, the court denied Mr. Traylor's motions.
On December 5, 2016, Mr. Traylor filed another motion for extension of time, requesting an additional 60-day extension of time to file such responses. (#191.00.) The court granted Mr. Traylor's motion and calculated the 60 additional days from the date on which his responses were then most recently due (i.e., November 23, 2016), making the new deadline January 23, 2017. (#191.86.) That same order set February 6, 2017 as the hearing date on such motions. (Id. ) Mr. Traylor did not file any opposition briefs (or any other motion for extension of time) on or before January 23, 2017.
On February 1, 2017, Mr. Traylor filed a motion for continuance of a " February 23" status conference. There was no status conference, however, scheduled for February 23, 2017. Accordingly, the court presumed that Mr. Traylor was requesting a continuance of the only hearing then-scheduled, that being the February 6, 2017 hearing. The reason provided by Mr. Traylor for the requested continuance was his claim that he had not had enough time to prepare opposition briefs to the defendants' respective motions to dismiss and motion for summary judgment, which were filed in June 2016. (#210.00.) Additionally, in such motion, Mr. Traylor represented that he had " contacted all counsel . . . of record about [his] intention to seek a continuance" and that they had " not responded." At the February 6, 2017 hearing, however, counsel represented that Mr. Traylor had not contacted them. On February 2, 2017, Mr. Traylor filed a request for adjudication regarding his February 1, 2017 motion for continuance, specifically representing that " he is having problems with his vision due to medication." (#218.00.)
On February 2, 2017, the court ruled on Mr. Traylor's February 1, 2017 motion for continuance as follows:
Plaintiff's motion seeks a continuance of a February 23, 2017 scheduled event. There is no scheduled event, however, for February 23, 2017. The court presumes that the plaintiff instead seeks another continuance of the hearing currently scheduled for February 6, 2017. Based on the lengthy period of time that has passed since the filing of the motions at issue and the lengthy continuances previously granted to the plaintiff, the court denies the request to continue the February 6 hearing. However, the court will give the plaintiff an opportunity to argue at that hearing why he should be afforded additional time to submit briefs in opposition to the defendants' pending motions. The plaintiff must bring documentation for the court's in camera (court-only) review to support his claim that he has been physically unable to comply with the court's deadlines. The court will decide at that time whether a separate hearing should be scheduled.(Emphasis added.) (#210.86.) On February 3, 2017, Mr. Traylor obtained his medical records from a VA office and had them sent from the New London courthouse, by way of an email from a clerk in New London to the undersigned's court officer. Such records were marked at the February 6, 2017 hearing as Court Exhibit 1 and were ordered to remain a court-only exhibit.
As confirmed on the record on February 6, 2017, by the court officer assigned to this docket, during the afternoon on Friday, February 3, 2017, Mr. Traylor called him and said that he had driven to a VA office that day to obtain his medical records and that he had driven to the New London courthouse that day to have those records emailed to the undersigned's chambers. That same afternoon, Mr. Traylor filed a so-called " Notice of Compliance." (#219.00.) Despite the fact that his motion to continue the February 6, 2017 hearing had already been denied, Mr. Traylor informed the court in his notice that he would not be attending the hearing, claiming for the first time that he was unable to drive as a result of prescribed medication. The court found, however, that by driving to a VA office and driving to the New London courthouse on Friday, February 3, 2017, the same day he made such a claim, Mr. Traylor's own conduct belied his claim that he would be unable to attend court the following Monday, February 6, 2017. Moreover, Mr. Traylor's February 1, 2017 request to continue the February 6, 2017 hearing made no claim that he could not drive. That claim was raised for the first time after the court denied his February 1 request.
With regard to the issue of the medical records that Mr. Traylor arranged to have, and did have, emailed to the undersigned's court officer on Friday, February 3, 2017, the court carefully reviewed such medical records for the purpose of considering Mr. Traylor's claim that vision problems prevented him from preparing briefs in opposition to the defendants' dispositive motions. As stated on the record on February 6, 2017, the court found that those records do not reflect any complaints relating to, or any treatment of, a vision problem that would prevent Mr. Traylor from complying with his court-related obligations. Furthermore, in light of his driving a motor vehicle on Friday, February 3, 2017, the court did not credit Mr. Traylor's claim that he was experiencing vision problems so severe that he could not work on briefs in opposition to the defendants' June 2016 motions. The foregoing history led the court to the conclusion that Mr. Traylor was flagrantly disregarding the court's deadlines and the court's February 3, 2017 order denying his request to continue the February 6, 2017 hearing. Accordingly, the court proceeded with the February 6, 2017 hearing, which Mr. Traylor failed to attend.
II
STANDARD OF REVIEW
" The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). Practice Book § 17-49 provides that summary judgment " shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue of material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Liberty Mut. Ins. Co. v. Lone Star Indus., Inc., 290 Conn. 767, 787, 967 A.2d 1 (2009).
" It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court in support of a motion for summary judgment." (Internal quotation marks omitted.) Home Ins. Co. v. Aetna Life & Cas. Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). " A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Buell Indus., Inc. v. Greater New York Mut. Ins. Co., 259 Conn. 527, 558, 791 A.2d 489 (2002). " A party opposing a motion for summary judgment must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). " [O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Taylor v. Barberino, 136 Conn.App. 283, 289, 44 A.3d 875 (2012) (affirming summary judgment in favor of defendant where plaintiffs failed to satisfy burden, following burden shift, to demonstrate existence of issue of material fact).
" The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence. Kasowitz v. Mutual Construction Co., 154 Conn. 607, 613, 228 A.2d 149 (1967). A material issue of fact is one that will affect the outcome of the case. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969)." 2830 Whitney Ave. Corp. v. Heritage Canal Dev. Assocs., Inc., 33 Conn.App. 563, 567, 636 A.2d 1377 (1994). " Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto." Practice Book § 17-46. Practice Book § 17-45(b) contemplates that any response to a motion for summary judgment will include " opposing affidavits and other available documentary evidence." See City of New Haven, 89 Conn.App. at 680 (holding that " trial court, 'should not have considered that evidence in support of the plaintiff's motion for summary judgment because of the violation of Practice Book § 17-45'").
" Because res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment [is] the appropriate method for resolving a claim of res judicata." Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993).
III
DISCUSSION
The Awwa defendants move for summary judgment on counts two through six of the amended complaint, claiming that the issues and claims raised by the plaintiff against them have previously been litigated to conclusion in the 2011 Action.
" Under the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim . . . Claim preclusion prevents the pursuit of any claims relating to the cause of action which were actually made or might have been made . . . The judicial doctrine of res judicata expresses no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest . . . The doctrine of res judicata applies . . . as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction . . .; and promotes judicial economy by preventing relitigation of issues or claims previously resolved . . . Furthermore, the appropriate inquiry with respect to claim preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding . . ." (Citations omitted; emphasis in original; internal quotation marks omitted.) Joe's Pizza, Inc. v. Aetna Life & Cas. Co., 236 Conn. 863, 871-72, 675 A.2d 441 (1996).
In considering whether the res judicata doctrine bars the plaintiff from proceeding with his claims against the Awwa defendants in the instant action, the court first examines the claims he asserted against them in the 2011 Action, as " the scope of matters precluded [in the subsequent suit] necessarily depends on what has occurred in the former adjudication." (Alteration in original; internal quotation marks omitted.) Id. at 873. " This requires a comparison of the complaint in this action with the pleadings and the judgment in the earlier action." Id.
The court has engaged in a careful comparison of the two complaints. In the instant action, the plaintiff asserts the following claims against the Awwa defendants: (1) count two--fraudulent concealment; (2) count three--spoliation; (3) count four--CUTPA (as to CBHA); (4) count five--intentional infliction of emotional distress; and (5) count six--loss of consortium. (#112.00.) With regard to the claims set forth in counts two through five, the court observes that the plaintiff asserted such claims in the following corresponding counts of the 2011 Complaint: (1) count thirteen (entitled " fraud by concealment"); (2) count eleven (spoliation and destruction of evidence); (3) count fifteen (CUTPA); and (4) count six (reckless infliction of emotional distress). (See #134.00.)
As to those counts (and others), the federal district court granted the Awwa defendants' motion to dismiss. See #152.00, Traylor v. Awwa, No. 3:11-cv-00132(AWT), Ruling on Motion to Dismiss, at 12-13 (as to count thirteen: " fraud by concealment"), 9-11 (as to count eleven: spoliation and destruction of evidence), 14-15 (as to count fifteen: CUTPA), and 7-8 (as to count six: reckless infliction of emotional distress) (D.Conn. Sept. 26, 2012) (Thompson, J.); see Id. (" The Complaint is dismissed in its entirety as to Bassam Awwa and Connecticut Behavioral Health Associates P.C.").
With regard to the additional claim that the plaintiff has asserted in the instant action--a loss of consortium claim (count six), the plaintiff could have brought, but did not bring, such claim in the 2011 Action. Accordingly, his current attempt to assert such claim is barred by the res judicata doctrine because he had " an adequate opportunity to litigate the matter in the earlier proceeding." (Emphasis in original; internal quotation marks omitted.) Joe's Pizza, Inc., 236 Conn. at 872.
Because the plaintiff was afforded a full and fair opportunity to litigate his claims against the Awwa defendants in the 2011 Action and to challenge the federal district court's dismissal of such claims by way of a direct appeal, he may not use the instant action to relitigate those claims. Therefore, the court grants the Awwa defendants' motion for summary judgment on res judicata grounds.
IV
CONCLUSION
For the foregoing reasons, the Awwa defendants' motion for summary judgment (#148.00) is granted in its entirety.