PHH PHH v. Sylvester Traylor et al.

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Superior Court of Connecticut.

PHH Mortgage Corp. fka PHH Mortgage Services v. Sylvester Traylor et al.

CV075004315

Decided: October 23, 2013

REVISED MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISQUALIFY (# 196)

On August 30, 2007, the plaintiff, PHH Mortgage Corp., commenced the present foreclosure action against the defendants, Sylvester Traylor, the town of Waterford, and Assertive Solutions, Inc. On August 23, 2013, Traylor filed a motion for disqualification of judicial authority, pursuant to Practice Book § 1–23.1  Traylor's motion included the accompanying “Affidavit of Santa Mendoza,” dated August 23, 2013.   Traylor also attached Exhibit A, which is a list of all the cases in which Traylor appears as a party (taken from the official Connecticut judicial branch website), and Exhibit B, which is an order from Judge Cosgrove that acknowledges that he is being sued by Traylor in another action, and that a motion to disqualify should be filed by August 26, 2013, pursuant to Practice Book § 1–22(b) and rule 2.11(e) of the Code of Judicial Conduct.   On August 28, 2013, the plaintiff filed an objection to the motion to disqualify.   A hearing was heard on the motion on September 23, 2013.

After submitting the motion and accompanying documents, Traylor filed three “statements.”   On September 23, 2013, Traylor filed his first “statement,” on September 24, 2013, the second “statement” was filed, and the third “statement” was filed on October 7, 2013.

There are also two recent objections filed by the plaintiff.   On October 4, 2013, the plaintiff filed a supplement to its objection to Traylor's motion for disqualification.   Secondly, there is also an objection to Traylor's improper supplemental statements in support of his motion to recuse.

Discussion

“[A]n accusation of judicial bias or prejudice strikes at the very core of judicial integrity and tends to undermine public confidence in the established judiciary ․” (Internal quotation marks omitted.)  Peatie v. Wal–Mart Stores, Inc., 112 Conn.App. 8, 25, 961 A.2d 1016 (2009).  “[S]peculation is insufficient to establish an appearance of impropriety.   As this court has explained, [a] factual basis is necessary to determine whether a reasonable person, knowing all of the circumstances, might reasonably question the trial judge's impartiality ․ Vague and unverified assertions of opinion, speculation and conjecture cannot support a motion to recuse ․” (Internal quotation marks omitted.)  McKenna v. Delente, 123 Conn.App. 137, 144, 1 A.3d 260 (2010).  “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.)  Id., 146.

Traylor moves, in his motion, to disqualify Judge Emmett Cosgrove and Judge Thomas Parker on the ground that, since the commencement of the present case, Traylor has brought nine separate litigation matters against various defendants, including actions in which the two judges were named as defendants.   Specifically, in Traylor v. Gerratana, Superior Court, judicial district of Hartford, Docket No. CV–11–5035895–S, Judge Parker was named as a defendant, and in Traylor v. Cosgrove, Superior Court, judicial district of Middlesex, Docket No CV–13–5008251–S, Judge Cosgrove was named as the defendant.

Attached to the motion to disqualify is the affidavit of Mendoza.   Mendoza is Traylor's attorney for the present case, and this affidavit clarifies that “[t]he fact of the [d]efendant Traylor now beginning civil litigation with both Judge Parker and Judge Cosgrove as [d]efendants, is the factual basis for the [Practice Book § ]1–23 motion filed on even date herewith.”   The affidavit further explains that the underlying “cases allege some causes of action involving some grievances Traylor alleges with the administration of his self-represented cases.”

Practice Book § 1–22(b) states, in relevant part:  “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.”  Rule 2.11(e) of the Code of Judicial Conduct states the same, except that it replaces the words “judicial authority,” with “judge.”   When discussing the issue of disqualification of judicial authority, one Superior Court judge opined:  “It would be an unreasonable result if a litigant could sue one or more of the people who might sit in judgment of him, causing their automatic disqualification, and then be allowed to argue that his cause should be sustained because no one is left to adjudicate it.   The necessity of having someone left in a position to decide was long ago recognized as a substantial concern in ruling upon questions of recusal or disqualification.”   Edelman v. Laux, Superior Court, judicial district of Windham.  Docket No. CV–11–5005710–S (July 26, 2013, Boland, J.).

In the present case, in Traylor's motion, he is arguing that Judge Cosgrove and Judge Parker should be disqualified solely because Traylor has brought separate actions against the two judges.   The attached affidavit of Mendoza even clarifies that this is “the factual basis for the [Practice Book § ]1–23 motion.”   Yet, the plain language of § 1–22(b) and rule 2–11 states that judges are not automatically disqualified from sitting on a proceeding merely because a party has filed an action against them, and Traylor has not provided any other factual basis from which a reasonable person might reasonably question the trial judges' impartiality.   Moreover, Traylor's argument for disqualifying Judge Cosgrove from the present action is further weakened by his recent withdrawal from Traylor v. Cosgrove, supra, Superior Court, Docket No. CV–13–5008251–S, on October 3, 2013.2

In addition to the motion and accompanying affidavit and exhibits, Traylor filed three supplemental “statements.”   However, Traylor moves to disqualify the judges pursuant to Practice Book § 1–23, which states, in relevant part:  “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.”  (Emphasis added.)  Id. Therefore, in ruling on this matter, this court is limited to considering the grounds raised in the motion and accompanying affidavit.   As such, the arguments and facts presented in the “statements” that Traylor filed will not be considered.3

For all of the foregoing reasons, Traylor's motion to disqualify Judge Cosgrove is denied.4

Devine, J.

FOOTNOTES

1.  FN1. Traylor is represented by counsel.   Attorney Santa Mendoza filed an appearance in the present case on June 2, 2008.

2.  FN2. The plaintiff's October 4, 2013 supplemental objection argues that “the withdrawal of Traylor's action [against Judge Cosgrove], has effectively mooted out the [j]udge's August 7, 2013[o]rder and therefore should also moot the [d]efendant's motion for disqualification or at least result in its denial.”

3.  FN3. The plaintiff's October 7, 2013 supplemental objection argues that Traylor's supplemental statements are not proper under the Practice Book, and should not be considered by the court, especially in view of the fact that Traylor is presently represented by counsel.

4.  FN4. However, the court notes that Judge Cosgrove, as administrative judge, may nevertheless refer this matter to another judge within the New London judicial district for further proceedings and trial.   As to the motion to disqualify Judge Parker, the court chooses to take no action because said jurist is not involved in the present controversy.

Devine, James J., J.

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