Chief Disciplinary Counsel v. Zbigniew Rozbicki

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Superior Court of Connecticut.

Chief Disciplinary Counsel v. Zbigniew Rozbicki

CV 11 6004519 S

-- January 30, 2012

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 131) AND SUPPLEMENTAL MOTION TO DISMISS (# 138)

The issue before this court is whether to grant the respondent's motion to dismiss (# 131) and supplemental motion to dismiss (# 138) the presentment complaint.   The respondent's motion to dismiss (# 131) is denied.   The respondent's supplemental motion to dismiss (# 138) is denied.

I

FACTS

On May 3, 2011, the Chief Disciplinary Counsel (“Disciplinary Counsel”) filed a presentment complaint against the respondent, Zbigniew Rozbicki, alleging that Rozbicki was guilty of misconduct involving his character, integrity and professional standing.   The two cases which are the subject of the presentment arise out of the same set of facts and were consolidated for a hearing at the Statewide Grievance Committee.   After a full hearing before a Reviewing Committee of the Statewide Grievance Committee, the Reviewing Committee issued a decision directing Disciplinary Counsel to file the presentment.

On September 21, 2011, Rozbicki filed a motion to dismiss (# 131), to which Disciplinary Counsel objected on September 28, 2011.   Rozbicki filed a reply on October 11, 2011.   Thereafter, on October 27, 2011, Rozbicki filed a supplemental motion to dismiss (# 138), to which Disciplinary Counsel objected on November 2, 2011.

On November 18, 2011, the court held a hearing on both motions to dismiss.   Additional facts will be presented as necessary.

II

MOTION TO DISMISS STANDARD

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”   (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).  “The grounds which may be asserted in [a motion to dismiss] are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10–31.

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)   Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).

“In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․ other types of undisputed evidence ․ and/or public records of which judicial notice may be taken ․ the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ․ Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ․ If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ․ or other evidence, the trial court may dismiss the action without further proceedings ․ If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations ․ or only evidence that fails to call those allegations into question ․ the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Id., 651–52.

III

ANALYSIS

In his motions to dismiss, Rozbicki asserts, essentially, three grounds 1 for dismissal:  (A) the presentment complaint was improperly brought in the name of Disciplinary Counsel;  (B);  Rozbicki's due process rights were violated;  and (C) the action is barred by the prior pending action doctrine.   The court will address each ground in turn.

A

Chief Disciplinary Counsel's Standing

In his motion to dismiss, Rozbicki moves to dismiss the presentment complaint on the ground that Disciplinary Counsel has no standing to bring and prosecute the presentment complaint.   Rather, according to Rozbicki, the complaint should have been brought in the name of the Statewide Grievance Committee.   Rozbicki asserts that Disciplinary Counsel's duties and authority are limited by Practice Book § 2–34A(b).

Disciplinary Counsel objects, arguing that Practice Book §§ 2–34A(b)(6) and 2–47(a) as well as the history of the Connecticut disciplinary process allow for Disciplinary Counsel to bring the presentment complaint as the petitioner/plaintiff.

The Office of the Chief Disciplinary Counsel was created in 2004.   Disciplinary cases arising from a grievance complaint filed with the Statewide Grievance Committee on or before January 2004 were brought in the name of the Statewide Grievance Committee as the plaintiff/petitioner.   The creation of the Office of the Chief Disciplinary Counsel, however, created a separation of responsibilities between the Statewide Grievance Committee as adjudicators and Disciplinary Counsel as prosecutors.

Practice Book § 2–34A(b)(6) provides that Disciplinary Counsel's powers and duties include preparing, filing and prosecuting presentment complaints.   Furthermore, Practice Book § 2–47(a) provides that “[p]resentment of attorneys for misconduct ․ shall be made by written complaint of the disciplinary counsel.”

Therefore, this court finds that Disciplinary Counsel has standing to bring the presentment complaint, and Rozbicki's motion to dismiss on this ground is denied.

B

Due Process

In his supplemental motion to dismiss, Rozbicki argues that the presentment complaint violates due process and the Practice Book. Rozbicki contends that the complainants did not allege a conflict of interest in their grievance complaints, and Rozbicki was not given notice that the grievance committee would consider the ruling and comments of the Probate Court in making a probable cause determination on a conflict of interest.

Pursuant to Practice Book § 2–35(c), “[t]he statewide grievance committee or reviewing committee shall not make a probable cause determination based, in full or in part, on a claim of misconduct not alleged in the complaint without first notifying the respondent that it is contemplating such action and affording the respondent the opportunity to be heard.”   Furthermore, upon their determination of probable cause, the statewide grievance committee or reviewing committee “shall issue a written notice which shall include but not be limited to the following:  (i) a description of the factual allegation or allegations that were considered in rendering the determination;  and (ii) for each such factual allegation, an identification of the specific provision or provisions of the applicable rules governing attorney conduct considered in rendering the determination.”  Practice Book § 2–35(c).  According to Rozbicki, neither the subcommittee's decision nor the presentment complaint complies with these requirements.   Rozbicki contends that the subcommittee's decision fails to tie its findings to the specific allegations of each grievance complaint.   Rather, the subcommittee's report refers to extraneous matters not in the grievance complaints, in general terms and without reference to the specific provisions of the applicable rules.

Furthermore, Rozbicki argues that the presentment complaint inappropriately relies on rulings from the Probate Court as a basis for allegations of misconduct.   According to Rozbicki, the Probate Court found no ethical violations in its ruling or comments.   Moreover, there is no reference to the Probate Court's ruling or comments in the grievance complaints.   Rozbicki contends that such extrinsic rulings and comments, not contained in the grievance complaints, cannot be the basis for a probable cause determination, in full or in part, on a claim for misconduct, without first notifying the respondent pursuant to Practice Book § 2–35(c).  Rozbicki submits his affidavit, attesting that he was not notified that the subcommittee was contemplating actions based on any findings beyond the allegations contained in the grievance complaints.

In opposition, Disciplinary Counsel argues, first, that Rozbicki is trying to accomplish an impermissible interlocutory appeal to the Superior Court from the presentment order of the grievance committee.   According to Disciplinary Counsel, in Miniter v. Statewide Grievance Committee, 122 Conn.App. 410, 998 A.2d 268, cert. denied, 298 Conn. 923, 4 A.3d 1228 (2010), our Appellate Court held that an appeal from an order of presentment was an impermissible interlocutory appeal because the order of presentment did not terminate a separate and distinct proceeding or terminate the rights of a party such that further proceedings could not affect them.   Thus, Disciplinary Counsel contends, Rozbicki's motion to dismiss the presentment complaint based on due process violations is improper because, in attorney discipline cases, due process violations are reviewed on appeal.

Second, Disciplinary Counsel contends that there are no due process violations in the underlying grievance procedure.   In responding to Rozbicki's argument concerning the Probate Court's ruling and comments, Disciplinary Counsel asserts that removal of a fiduciary is governed by General Statutes § 45a–242, and, under this statute, the heirs did not have to allege a conflict of interest, nor did the probate court have to find a conflict of interest, in order to remove Rozbicki as executor.   Thus, according to Disciplinary Counsel, it was not a necessary prerequisite to the reviewing committee's or the grievance committee's probable cause finding that the Probate Court make a specific finding of misconduct under Rules of Professional Conduct (“RPC”) 1.7 for conflicts or RPC 8.4(4) for engaging in conduct that is prejudicial to the administration of justice.   Rather, the Probate Court's decision to remove Rozbicki as executor is evidence of the alleged conflict of interest.

Disciplinary Counsel also argues that Rozbicki confuses notice of misconduct with notice of specific violations of the RPC. Due process is satisfied where the presentment complaint gives notice of the actual conduct at issue;  allegations of specific violations of the RPC are not required to satisfy due process.

1

Miniter v. Statewide Grievance Committee

In Miniter v. Statewide Grievance Committee, supra, 122 Conn.App. 410, our Appellate Court affirmed the judgment of the trial court granting the grievance committee's motion to dismiss the plaintiff's appeal, to the Superior Court, from an order of presentment.   In Miniter, the reviewing committee found that the plaintiff violated various RPC, and ordered disciplinary counsel to file a presentment.  Id., 412.  “The plaintiff thereafter filed an appeal from the decision of the committee in the Superior Court, claiming, in sum, that his due process rights were violated and that the conclusion that he had violated certain Rules of Professional Conduct and other rules of practice was improper.   The committee then filed a motion to dismiss the plaintiff's appeal for lack of subject matter jurisdiction in that there was no final judgment from which to appeal.   The [trial] court granted the motion, reasoning that the decision from which the plaintiff appealed was interlocutory and, thus, not appealable.”  Id. In affirming the trial court, the Appellate Court explained that “[a]n order of presentment is an initial step in disciplinary proceedings against an attorney.   Following the filing of a presentment complaint, a hearing on the merits is held after which the court renders judgment on the presentment complaint ․ The committee's decision directing that a presentment be filed in Superior Court is interlocutory in nature and not a final judgment from which an appeal to the Superior Court lies ․ Following an order of presentment by the committee, a presentment complaint is filed, and the matter continues in the Superior Court until judgment is rendered on the presentment complaint.”  (Citations omitted.)  Id., 413–14.  “If presentment is ordered, the presentment is simply an intermediary step in the disciplinary proceedings, which continue in the Superior Court.”   Id., 414.

In Miniter, “[t]he plaintiff also [claimed] that the court violated his right to due process by granting the committee's motion to dismiss because, as a result, he [was] unable to raise the claim that the procedure leading to presentment constituted a denial of his due process rights.”   Id., 415 n.3. Our Appellate Court explained that “[t]he [trial] court did not violate his right to due process and properly granted the motion to dismiss for lack of a final judgment.   Our Supreme Court has reviewed claims, on an appeal from a final judgment, that the procedure leading to ․ presentment violated ․ due process rights.”   Id., 415–16 n.3.

In Statewide Grievance Committee v. Rozbicki, 219 Conn. 473, 484, 575 A.2d 819 (1991), cert. denied, 502 U.S. 1094, 112 S.Ct. 1170, 117 L.Ed.2d 416 (1992), our Supreme Court stated that “[i]n [presentment] proceedings ․ a defendant is entitled to notice of the charges against him, to a fair hearing, and a fair determination ․ and to an appeal to this court for the purpose of having it determined whether or not he has in some substantial manner been deprived of such rights.”  (Emphasis in original;  internal quotation marks omitted.)   See Somers v. Statewide Grievance Committee, 245 Conn. 277, 287, 715 A.2d 712 (1998) (remanding to the statewide grievance committee “for a new hearing on the grievance complaint against the plaintiff without regard to those facts upon which it improperly relied”).

In the present case, Rozbicki is challenging, by way of a motion to dismiss, the procedures leading to the presentment complaint.   Essentially, Rozbicki is arguing that the grievance committee impermissibly relied on the Probate Court's ruling and comments in makings its decision to file a presentment complaint.   According to Rozbicki, the reliance was impermissible because he was not given notice that such information would be taken into consideration in finding probable cause.

The grievance committee's decision to file a presentment complaint, however, is not appealable at this stage in the proceedings.   The presentment complaint is not a final judgment.   Rozbicki must wait until the Superior Court renders judgment on the presentment complaint before he can make a due process challenge to our appellate courts.   Accordingly, the supplemental motion to dismiss on this ground is denied.

2

Notice of the Charges

Rozbicki also contends that his due process rights have been violated because the presentment complaint is based on claims of misconduct, of which Rozbicki was not notified that the reviewing committee or the grievance committee would consider.   Specifically, Rozbicki argues that he was notified only that these committees would consider the allegations contained in the grievance complaints, and the grievance complaints did not contain specific allegations of a conflict of interest.   Rozbicki contends that, under the Practice Book and due process, he was entitled to notice that the committees were contemplating action on an alleged conflict of interest and considering the rulings and comments by the probate court.   Because he was not given proper notice, Rozbicki asserts that these claims of misconduct cannot form the basis of the presentment complaint.

“Because a license to practice law is a vested property interest and disciplinary proceedings are adversary proceedings of a quasi-criminal nature, an attorney subject to discipline is entitled to due process of law ․ The determination of the particular process that is due depends on the nature of the proceeding and the interests at stake ․ In attorney disciplinary proceedings, two interests are of paramount importance.   On the one hand, we must not tie the hands of grievance committees and trial courts with procedural requirements so strict that it becomes virtually impossible to discipline an attorney for any but the most obvious, egregious and public misconduct.   On the other hand, we must ensure that attorneys subject to disciplinary action are afforded the full measure of procedural due process required under the constitution so that we do not unjustly deprive them of their reputation and livelihood ․

“Generally, [b]efore discipline may be imposed, an attorney is entitled to notice of the charges, a fair hearing and an appeal to court for a determination of whether he or she has been deprived of these rights in some substantial manner ․ Notice of the nature of the charges must be reasonable and the attorney must be apprised of them before the proceedings commence ․ If sufficient notice is not provided, attorney grievance proceedings can become a trap when, after they are underway, the charges are amended on the basis of testimony of the accused.   He can then be given no opportunity to expunge the earlier statements and start afresh.”  (Citations omitted;  internal quotation marks omitted.)  Kucej v. Statewide Grievance Committee, 239 Conn. 449, 462–63, 686 A.2d 110 (1996), cert. denied, 520 U.S. 1276, 117 S.Ct. 2457, 138 L.Ed.2d 214 (1997).

In Kucej v. Statewide Grievance Committee, supra, 239 Conn. 462, the plaintiff argued “that his federal due process rights were violated because the notice he received from the statewide bar counsel concerning the scope of the hearing ․ caused him reasonably to believe that the committee would not review the local panel's findings of no probable cause, thereby depriving him of a meaningful opportunity to contest the complainant's allegation ․” The statewide grievance committee had forwarded a complaint, alleging violations of the Rules of Professional Conduct, to a local panel for review.  Id., 453.   The local panel made a probable cause finding on some of the claims in the complaint but failed to make findings on other claims.2  Id., 453–54.   These findings were forwarded to the statewide grievance committee.  Id., 454.   The statewide grievance committee then referred the case to a reviewing committee, which also made a probable cause finding.  Id., 455.  “The plaintiff filed a written objection to the ․ reviewing committee's probable cause finding.   The basis of the objection was that the ․ reviewing committee had exceeded its authority in reviewing the local panel's determination of no probable cause.”  Id., 456.   The plaintiff's objection was overruled, and a hearing was held before the reviewing committee, which subsequently issued a reprimand to the plaintiff.  Id. Thereafter, the plaintiff appealed to the Superior Court, which rejected the plaintiff's claim and dismissed the appeal.  Id., 457.   On appeal to our Supreme Court, the plaintiff argued that he interpreted the “informational enclosure that accompanied the letter sent to him by the statewide bar counsel notifying him of ․ the hearing before the ․ reviewing committee” to mean that because the statewide bar counsel “had itself already conducted a final review of the local panel's no probable cause findings, the ․ reviewing committee lacked the authority to do so.”  Id., 459–60.

Although statewide bar counsel and our Supreme Court agreed that “the representations in the informational enclosure were misleading insofar as they suggested that the ․ reviewing committee would take no action regarding the local panel's no probable cause findings,” our Supreme Court found that the plaintiff was not prejudiced as a result.  Id., 460, 463.   The court explained that “this is not a case wherein the plaintiff's procedural due process rights were violated because he was required to defend himself against charges of which he had not received adequate notice.”  Id., 465.   Rather, the court found that “the plaintiff was afforded a full and fair opportunity to challenge the ․ reviewing committee's probable cause findings before a second reviewing committee comprised of a different group of the [statewide grievance committee's] members.   In light of the fact that the plaintiff was afforded a de novo hearing by the [second] reviewing committee and, thereafter, a review of that committee's proposed decision by all of the [statewide grievance committee's] members, the plaintiff has failed to establish that he was in any way prejudiced by the [first] reviewing committee's consideration of the local panel's findings of no probable cause.”  Id., 464.

The Kucej court distinguished that case from Statewide Grievance Committee v. Botwick, 226 Conn. 299, 627 A.2d 901 (1993), noting that, in Botwick, the court found a “violation of procedural due process where [the] presentment did not provide notice of [the] offense for which [the] attorney [was] sanctioned.”  Kucej v. Statewide Grievance Committee, supra, 239 Conn. 465.

In Botwick, the defendant “[claimed] that the presentment filed by the plaintiff charged him only with misconduct as a result of his dealings with the complainant, and did not indicate an interest in his dealings with [a third-party].   The proceedings focused on whether the defendant had misappropriated the complainant's funds, not on whether he had violated an escrow agreement with [the third-party].   The defendant [argued], therefore, that because the presentment did not provide sufficient notice of the violation for which he was suspended, his due process rights were infringed.”  Statewide Grievance Committee v. Botwick, supra, 226 Conn. 308–09.   In agreeing with the defendant, the court noted that “notice of the nature of the charges [must] be reasonable ․ and that the attorney must be apprised of the charges against him or her before the proceedings commence.”  (Citation omitted;  internal quotation marks omitted.)  Id., 308.   The court found that “[t]he defendant ․ was not fully and fairly apprised of the charge that he had violated the escrow agreement because the presentment made no mention of this agreement and because it was a separate and distinct issue from the other allegations of misconduct contained in the presentment.   As a result, the defendant had no opportunity to present witnesses to address this specific claim ․ The lack of notice in the presentment of misconduct stemming from the escrow agreement, and the trial court's reliance on that agreement as the ground for suspending the defendant, deprived him of procedural due process.”   (Citation omitted.)  Id., 311.

The Botwick court, however, distinguished that case from Statewide Grievance Committee v. Rozbicki, supra, 219 Conn. 473, noting that, in Rozbicki, “we rejected the defendant's argument that imprecise presentment allegations violated his due process rights because we concluded that the presentment had specifically mentioned the transaction for which a violation was found.   Unlike [Rozbicki ], however, the presentment in [Botwick ] provided no notice to the defendant that the escrow agreement ․ could be the basis of discipline arising out of allegations of misconduct predicated on his relationship with the complainant.”  Statewide Grievance Committee v. Botwick, supra, 311.

The Botwick court also noted that in Statewide Grievance Committee v. Rozbicki, supra, 219 Conn. 473, “we stated that the presentment need not refer to specific sections of the Code of Professional Responsibility because, unlike criminal statutes, reference to specific rules does not constitute the only basis for a finding of guilt in attorney misconduct proceedings.   Rather, reference to a specific rule simply assists the trial court in drawing its conclusions as to whether, under the totality of the circumstances, professional misconduct occurred ․ [Rozbicki ] does not, however, mean that a grievance committee or a trial court has carte blanche to examine any evidence and find a violation without regard to whether the presentment gave the defendant adequate notice of the charges against him.   Rather, a court may find a violation even if a specific rule has not been cited so long as the attorney subject to discipline has been accorded the full measure of due process required under the particular circumstances of the case.”  (Citation omitted.)  Statewide Grievance Committee v. Botwick, supra, 226 Conn. 310.

In Statewide Grievance Committee v. Rozbicki, supra, 219 Conn. 473, a grievance complaint was filed against the defendant as a result of two transfers of real property from the complainant to the defendant.   The defendant argued that “the allegations in the presentment were so imprecise that the subsequent court proceedings violated ․ due process.”  Id., 483–84.   Our Supreme Court found that “[t]he presentment apprised the defendant that these two transactions were the basis of the grievance committee's allegations of misconduct.   There is no question that the factual circumstances that served as the basis of the grievance committee's allegations and the trial court's eventual conclusions were known to the defendant, that all aspects of the two transactions were completely developed at the hearing, and the defendant was given a full opportunity to respond.   Under these circumstances, we conclude that the requirements of due process were met.”  Id., 484.

The Botwick court also distinguished that case from Grievance Committee of Bar of New Haven County v. Sinn, 128 Conn. 419, 424, 23 A.2d 516 (1941).   In Botwick, the plaintiff claimed that our Supreme Court's “decision in [Sinn ] [required] [the Supreme Court] to conclude that the defendant was not deprived of notice because he willingly and without objection answered questions at trial about his ethical obligations with respect to the escrow agreement.”  Statewide Grievance Committee v. Botwick, supra, 226 Conn. 309 n. 10.   Our Supreme Court responded:  “We are unpersuaded.   In Sinn, the trial court went beyond the specific allegations in the presentment and based its decision on additional facts adduced at trial to which there was no objection.   On appeal, we held that the respondent there had specific notice of the acts and conduct under investigation, and that it was not necessary to allege all the details of such conduct ․ Sinn is distinguishable, however, because there the presentment alleged, inter alia, that the respondent had engaged a sheriff, made certain demands on him that resulted in a lawsuit and judgment against the sheriff by a third party, and then refused to reimburse the sheriff for the sheriff's costs ․ The trial court found that although the presentment did not allege that the respondent specifically agreed to pay the sheriff's costs, the respondent had personally requested the services and directed that certain property be seized, and therefore was liable for the consequences of his actions ․ In Sinn, both the presentment and the evidence addressed the respondent's relationship with the sheriff.   By contrast, although the presentment [in Botwick ] dealt solely with the relationship between the defendant and the complainant, the violation for which the defendant was suspended involved an agreement between the defendant and [a third-party].”  (Citations omitted.)  Statewide Grievance Committee v. Botwick, supra, 309 n.10.

In the present case, Rozbicki contends that the complainants did not specifically allege a conflict of interest in their grievance complaints, and that he was not given notice that the grievance committee would rely on rulings and comments from the probate court as support for finding probable cause.   Thus, according to Rozbicki, the presentment cannot be based on this information.

The court finds, however, that the presentment provides Rozbicki with adequate notice of the charges against him and does not violate his due process rights.  Practice Book § 2–35(c) prohibits the grievance committee from basing a probable cause determination on a claim of misconduct that is not alleged in the grievance complaint without first notifying the respondent.   This rule requires that the grievance committee provide notification of each claim of misconduct that it is considering, not each rule.   Thus, Rozbicki was not entitled to notice as to each and every rule that the grievance committee considered, including a violation of RPC 1.7 for conflicts of interest.   Whether Rozbicki had a conflict of interest in his role as executor is not a separate and distinct issue from the other allegations of misconduct in his role as executor.   Rozbicki was on notice that he was being investigated for violations of the RPC as a result of his role as executor.   The claims of misconduct, from which a probable cause determination was made, resulted from his role as executor.

The presentment apprises Rozbicki of the transactions that form the basis of the allegations of misconduct, i.e., the actions he took in his role as executor in the administration of the estate of Kathleen Gisselbrecht.   The presentment makes it clear that the trial court's inquiry will concern these actions.   Accordingly, the presentment adequately informs Rozbicki of the charges against him and does not violate his due process rights.   The supplemental motion to dismiss on this ground is denied.

C

Prior Pending Action Doctrine

In his supplemental motion to dismiss, Rozbicki asserts that the presentment complaint must be dismissed on the ground that the court lacks subject matter jurisdiction based on the prior pending action doctrine.3  Rozbicki contends that three grievance complaints, containing essentially the same allegations, were filed against him by members of the same family who share a common interest in the outcome.   On January 23, 2009, Ann Marie Rozsas filed her grievance complaint, followed by Edward Gisselbrecht on March 19, 2009, and Christina Falzarano on April 3, 2009.4  Rozbicki argues that the two grievances which are the subject of the presentment complaint, i.e., those by Gisselbrecht and Falzarano, are duplicative of the grievance complaint filed by Rozsas, which was dismissed by the statewide grievance committee after a full evidentiary hearing.   According to Rozbicki, because all of the claims and issues common to the three grievances were adjudicated in his favor by the Rozsas committee, the prior pending action doctrine applies to bar the present disciplinary action.

In opposition, Disciplinary Counsel argues that the prior pending action doctrine does not apply because grievance complaints are not “suits” as contemplated by the doctrine.   Disciplinary Counsel also argues that the complainant in each of the grievance complaints is different, the grievance complaints had certain different discernable facts as related to the individual complainants, and the probable cause findings in the Gisselbrecht and Falzarano grievance cases were different from the findings in the Rozsas grievance case.   According to Disciplinary Counsel, because Disciplinary Counsel and the reviewing committee of the statewide grievance committee may only address the rule violations asserted in the probable cause findings, the probable cause findings in the Gisselbrecht and Falzarano grievances were not adjudicated in the Rozsas grievance proceeding.

“[A] motion to dismiss is the proper vehicle to raise the issue of a prior pending action, [although] the doctrine does not truly implicate subject matter jurisdiction.”  (Internal quotation marks omitted.)  Bayer v. Showmotion, Inc., 292 Conn. 381, 403, 973 A.2d 1229 (2009).  “[T]he prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court.   The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement.   It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious.   This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction ․ The policy behind the prior pending action doctrine is to prevent unnecessary litigation that places a burden on our state's already crowded court dockets ․ The rule, however, is not one of unbending rigor, nor of universal application, nor a principle of absolute law ․ Accordingly, the existence of claims that are virtually alike does not, in every case, require dismissal of a complaint.”  (Citations omitted;  internal quotation marks omitted.)  Id., 395–96.

When ruling on a motion to dismiss under the prior pending action doctrine, the court must examine whether both actions “(1) arise from the same factual background, (2) include the same parties and (3) seek the same goals or objectives.”  Modzelewski v. William Raveis Real Estate, Inc., 65 Conn.App. 708, 714, 783 A.2d 1074, cert. denied, 258 Conn. 948, 788 A.2d 96 (2001).   “[T]he trial court must determine in the first instance whether the two actions are:  (1) exactly alike, i.e., for the same matter, cause and thing, or seeking the same remedy, and in the same jurisdiction;  (2) virtually alike, i.e., brought to adjudicate the same underlying rights of the parties, but perhaps seeking different remedies;  or (3) insufficiently similar to warrant the doctrine's application.”  (Emphasis in original.)  Bayer v. Showmotion, Inc., supra, 292 Conn. 397.

“If the two actions are exactly alike or lacking in sufficient similarities, the trial court has no discretion.   In the former case, the court must dismiss the second action, and in the latter instance, the court must allow both cases to proceed unabated.   Where the actions are virtually, but not exactly alike, however, the trial court exercises discretion in determining whether the circumstances justify dismissal of the second action.”  Id., 398.  “The applicability of the prior pending action doctrine does not turn on whether the two actions seek the same remedy ․ but ․ whether they are brought to adjudicate the same underlying rights.”  (Citation omitted;  internal quotation marks omitted.)  Id., 399.

In the present case, Rozbicki argues that the parties are the same because Rozsas, Gisselbrecht and Falzarano are family members with a common interest, who were represented by the same law firm at the time the grievances were filed.   Generally, there must be “a strict identity of the parties” for the doctrine to apply.  (Internal quotation marks omitted.)   Chreiman v. ITT Hartford Group, Superior Court, judicial district of New London, Docket No. 545908 (March 29, 1999, Purtill, J.T.R.).  “Superficial differences in the parties, [however,] are not enough to overcome dismissal under the prior pending action doctrine.”  Gaudio v. Gaudio, 23 Conn.App. 287, 296, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990).   For example, “[i]n Gaudio v. Gaudio, supra, 23 Conn.App. 296, the court noted that in one suit, the plaintiff sued Gaudio, an individual;  in another suit, the plaintiff sued a corporation, but the allegations against [the corporation were] actually made against Gaudio, acting for the corporation ․ [T]he Gaudio court determined that the plaintiff's latter suit should not have been dismissed based on the prior pending action doctrine ․

“In Pecan v. Madigan, 97 Conn.App. 617, 618–19, 905 A.2d 710 (2006), cert. denied, 281 Conn. 919, 918 A.2d 271 (2007), the plaintiff sued a town housing authority for negligence, and then sued the housing authority's executive director and head of maintenance for negligence while the first suit was pending.   The Appellate Court determined that pursuant to General Statutes § 8–41a, the housing authority would be liable for its employees' negligent conduct within the scope of their employment ․ Accordingly, there was functional identity between the parties and the prior pending doctrine applied to the negligence counts ․

“Additionally, in Northern Homes Distributors, Inc. v. Grosch, 22 Conn.App. 93, 94–95, 575 A.2d 711, cert. granted in part, 216 Conn. 810, 580 A.2d 58 (1990) (appeal withdrawn September 27, 1991), Elaine Grosch filed an action against Donald Ghent;  when Ghent and others instituted an action against Grosch, Grosch filed a counterclaim against both Ghent and Northern Homes Distributors, Inc. that was nearly identical to her initial action.   Assessing the Superior Court's grant of Ghent's motion to dismiss the counterclaim, the Appellate Court said the following:  ‘In comparing the defendant's counterclaim in this case to her original complaint, we conclude that the trial court correctly determined that they were “virtually alike.”   In both actions, Grosch seeks to have the same claims adjudicated, and ultimately seeks to hold Donald Ghent liable.   Her contention that the parties in her counterclaim are different from those in the original complaint does not survive scrutiny.   While it is true that her counterclaim includes counts against Northern Homes Distributors, Inc., and her complaint did not, she has also added a count to her counter-claim asserting that Donald Ghent is liable as the “alter ego” of Northern Homes Distributors, Inc. Hence, although on its face, her counterclaim may appear to be against two parties, the defendant's ultimate goal in both actions is to hold Donald Ghent liable on these claims.’  ․ The court thus determined that dismissal based on the prior pending action doctrine was proper.”  (Citations omitted;  internal quotation marks omitted.)   MLP, LLC v. Sorrentino, Superior Court, judicial district of New Haven, Docket No. CV 07 5013040 (March 19, 2008, Holden, J.).

In the present case, there is no legal theory under which Rozsas, Gisselbrecht and Falzarano, acting independently and in their individual capacities, could be considered the same parties.   Each of the three grievance complaints was filed separately, and each was filed by only one complainant;  Rozsas, Gisselbrecht and Falzarano are each a party only to his or her own grievance complaint.   Rozsas, Gisselbrecht and Falzarano are not the functional equivalent of one another;  merely because they are relatives does not make their identities interchangeable.   Furthermore, “[parties] are not fungible, even if they are represented by the same attorney and have similar interests.”  (Internal quotation marks omitted.)  MLP, LLC v. Sorrentino, supra, Superior Court, Docket No. CV 07 5013040.   Consequently, the fact that Rozsas, Gisselbrecht and Falzarano were represented by the same attorney at the time the grievance complaints were filed and may have a common interest is irrelevant.   Under these circumstances, because the parties are not the same, the prior pending action doctrine does not apply.

Even if there did exist a legal theory by which this court could determine that, for purposes of the prior pending action doctrine, the parties to each of the grievances were essentially the same, there is no prior action that is currently pending.  “In order to invoke the prior pending action doctrine, the party seeking dismissal must establish that there is actually a current pending lawsuit.   Various Superior Courts have refused to dismiss cases based upon the prior pending action doctrine when the prior action is not actually pending ․ [T]he fact that there was at one time an action which is between the same parties, is the same character, and has been brought to achieve the same objective ․ does not abate the current action if the former action is terminated at any time prior to the hearing on a plea in abatement in the second action.  (Internal quotation marks omitted.)   Sanford v. Gorton, Superior Court, judicial district of Fairfield, Docket No. CV 09 4028647 (September 16, 2009, Bellis, J.).  “The plea in abatement ․ has ․ since been replaced by the motion to dismiss.”  (Citation omitted,) Halpern v. Board of Education, 196 Conn. 647, 652 n.4, 495 A.2d 264 (1985).

In the present case, Rozbicki contends that the presentment complaint is barred by the prior pending action doctrine because, by virtue of the dismissal of the Rozsas grievance complaint, any common issues in the Gisselbrecht and Falzarano complaints were thereby adjudicated.  “[T]he prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court.”  (Emphasis added;  internal quotation marks omitted.)  Bayer v. Showmotion, Inc., supra, 292 Conn. 395.   The Rozsas grievance complaint was dismissed on September 4, 2009, and thus, cannot not be currently pending before the court so as to permit dismissal of the presentment complaint.

Accordingly, because the parties are not the same and there is no prior action that is currently pending, the supplemental motion to dismiss on this ground is denied.

V

CONCLUSION

The motion to dismiss (# 131) is denied.   The supplemental motion to dismiss (# 138) is denied.

So ordered.

BY THE COURT,

Upson, Judge Trial Referee

FOOTNOTES

1.  FN1. Rozbicki also moves to dismiss on the ground that the Subcommittee/Reviewing Committee failed to submit its proposed decision to the Statewide Grievance Committee for review and approval.   This issue, however, was determined by way of denial of an earlier motion to dismiss brought by Rozbicki.   Chief Disciplinary Counsel v. Rozbicki, Superior Court, judicial district of Litchfield, Docket No. CV 11 6004519 (June 24, 2011, Ginocchio, J.).   Rozbicki does not assert any new facts or law that would justify departure from the law of the case doctrine.   See Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646, 656–57, 954 A.2d 816 (2008).   The law of the case doctrine controls with regard to this issue.

2.  FN2. The parties agreed that the failure to make express findings on certain claims “constituted a determination of no probable cause as to those claims.”   Id., 454 n.7.

3.  FN3. In his memorandum of law in support of his supplemental motion to dismiss, Rozbicki argues that, in addition to the prior pending action doctrine, the principles of issue preclusion deprive this court of subject matter jurisdiction.   However, neither res judicata nor collateral estoppel implicate the court's subject matter jurisdiction.   See State v. T.D., 286 Conn. 353, 360 n.6, 944 A.2d 288 (2008);  Morgan v. Wright, 122 Conn.App. 253, 256 n.4, 998 A.2d 247 (2010).   Moreover, res judicata and collateral estoppel must be raised as special defenses, not in a motion to dismiss.   See Carnese v. Middleton, 27 Conn.App. 530, 537, 608 A.2d 700 (1992);  see also Practice Book § 10–50.   Furthermore, Rozbicki does not provide the court with any case law or analysis on his issue preclusion argument, and the court deems that argument to be abandoned.

4.  FN4. Edward Gisselbrecht and Christina Falzarano are siblings of the decedent, Kathleen Gisselbrecht.   Ann Marie Rozsas is the daughter of Christina Falzarano, and hence, the decedent's niece.

Upson, Thomas F., J.

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