Sylvester Traylor, Administrator of the Estate of Roberta Mae Traylor et al v. Bassam Awwa, M.D. et al. (2011)

MEMORANDUM OF DECISION RE State Paying for Transcripts

Now before the court is a request in the nature of an appeal from the denial of an application to have the State pay for transcripts for an appeal.

Some background should be helpful.   This case was originally a medical (psychiatric) malpractice wrongful death action.   It was returnable to this court in July 2006.   It is a huge file;  there are well over 400 file entries.   The primary plaintiff is Sylvester Traylor, Administrator of the Estate of his late wife, Roberta Mae Traylor.   Sylvester Traylor is also a plaintiff in his personal or individual capacity for loss of consortium claims.   Sylvester Traylor is not licensed to practice law.   He has been pro se.   Largely due to his less than deft handling of this matter, confusion permeates every aspect.

The main part (Counts 1–6) of this case, the medical malpractice wrongful death action counts were dismissed in July 2010.   Four counts were on behalf of Sylvester Traylor as the Administrator of the Estate of Roberta Mae Traylor.   The other two counts were on behalf of Sylvester Traylor in his personal and/or individual capacity alleging loss of consortium claims.   Memorandum of Decisions, July 29, 2010 and August 11, 2010. [366.02, 366.04.]   However, counts alleging the intentional spoliation of evidence and the inevitable CUTPA were added in June 2009.

On February 15, 2011, this court dismissed Counts 6 and 7, the spoliation of evidence and CUTPA counts.   Memorandum of Decision, February 15, 2011. [469.]  “Judgment shall enter for the defendants and against the plaintiffs.”  Id. There is a judgment file indicative of a final judgment. [495.]

A “Motion to Reargue and Reconsideration” was filed on February 17. [471.]  It was denied on February 18, 2011. [471.01.]

On February 23, 2011, Sylvester Traylor applied for a waiver of fees regarding the entry and filing fees for an appeal and for the State to pay for “TRANSCRIPT FEES.” [483.]  The court (Cosgrove, J.) granted the fee waiver for the entry fee but denied same for transcripts. [483.]

On February 23, 2011, Sylvester Traylor in his “Pro–Se Capacity” filed the form “APPEAL—CIVIL JD–SC–28” designating therein the appeal was to the Supreme Court. [485.]

On February 24, 2011, Sylvester Traylor, as Administrator Of the Estate of Roberta Mae Traylor, through counsel, Attorney Edward C. Berdick, appealed to the Appellate Court. [487.]

Also, on February 24, 2011, Sylvester Traylor, in his “Pro- Se Capacity” filed an “AMENDED APPEAL FORM Due to Scrivener's ¹ Errors on Plaintiff's 2/23/11 Form.” [489.]

Sylvester Traylor on March 1, 2011 invoked the “Request For Hearing On Denied Application” which appears on the Fee Waiver Form he had used (erroneously).   Sylvester Traylor wrote thereon:  “Regarding No Transcript This is Appeal.” [489.50.]

The Request for Hearing appeared on the March 7, 2011 short calendar.

On March 7, 2011, “AMENDED PLAINTIFF SYLVESTER TRAYLOR IN HIS INDIVIDUAL CAPACITY REQUESTS FOR A HEARING ON A PARTIAL DENIAL ON A FEE WAIVER DATED FEBURARY 22, 2011” was filed.

Fifteen transcripts are identified that Sylvester Traylor claims are necessary for the appeal. [492.]

On March 7, Judge Cosgrove heard Sylvester Traylor on the request for free transcripts.   The transcript of that hearing shows Sylvester Traylor did not even make a pass at stating the grounds upon which Sylvester Traylor proposes to appeal.

On March 11, 2011, Judge Cosgrove, in accordance with P.B. § 63–6 declined to address the issues raised by Sylvester Traylor stating the issues raised must be “addressed by Parker, J.T.R.” [493.]

This judge has not and does not review the merits of Judge Cosgrove's decision on the financial part of the fee waiver request.   Only the part of the request regarding the transcripts has been referred to this judge.

Section 63–6 of the Practice Book is set forth in its entirety below.   The portions thereof deemed material to the issues now before the court are underlined:

“If a party in any case where fees and costs may lawfully be waived is indigent and desires to appeal, that party may, within the time provided by the rules for taking an appeal, make written application, to the court to which the fees required by statute or rule are to be paid, for relief from payment of fees, costs and expenses.   The application must be under oath and recite, or it must be accompanied by an affidavit reciting, the grounds upon which the applicant proposes to appeal and the facts concerning the applicant's financial status.

“The judicial authority shall assign the request for waiver of fees, costs and expenses for a hearing within twenty days of its filing and shall act promptly on the application following the hearing.   Where a request arises out of a habeas corpus proceeding, the request shall be handled pursuant to Section 63–7.

“If the court is satisfied that the applicant is indigent and has a statutory or constitutional right to court appointed counsel or a statutory right to appeal without payment of fees, costs and expenses, the court may (1) waive payment by the applicant of fees specified by statute and of taxable costs, and waive the requirement of Section 63–5 concerning the furnishing of security for costs upon appeal, and (2) order that the necessary expenses of prosecuting the appeal be paid by the state.   The court may not consider the relative merits of a proposed appeal in acting upon an application pursuant to this section.

“Before incurring any expense in excess of $100, including the expense of obtaining a transcript of the necessary proceedings or testimony, counsel for the applicant shall obtain the permission of the judge who presided at the applicant's trial.   The judge shall authorize a transcript at state expense only of the portions of testimony or proceedings which may be pertinent to the issues on appeal.

“The sole remedy of any party desiring the court to review an order concerning the waiver of fees, costs and security shall be by motion for review under Section 66–6.”

Practice Book § 63–6.

Recently, the Appellate Court noted the following when discussing Sylvester Traylor:

“ ‘Although we are solicitous of the rights of pro se litigants ․ [s]uch a litigant is bound by the same rules and procedure as those qualified to practice law ․’ (Citation omitted;  internal quotation marks omitted.)   Thompson v. Rhodes, 125 Conn.App. 649, 651, 10 A.3d 537 (2010).”   Sylvester Traylor v. State of Connecticut Superior Court, Conn.App. (April 19, 2011).

Like it or not, Sylvester Traylor is bound by the rules, including P.B. § 63–6.

Sylvester Traylor's February 23, 2011 application for a waiver of fees [483] did not “recite ․ the grounds upon which the applicant proposes to appeal.”   Sylvester Traylor has also filed his “PLAINTIFF SYLVESTER TRAYLOR IN HIS INDIVIDUAL CAPACITY REQUEST A HEARING ON A PARTIAL DENIAL ON A FEE WAIVER DATED FEBRUARY 22, 2011, March 1, 2011[490] and “AMENDED PLAINTIFF SYLVESTER TRAYLOR IN HIS INDIVIDUAL CAPACITY REQUESTS FOR A HEARING ON A PARTIAL DENIAL ON A FEE WAIVER DATED FEBURARY 22, 2011,” March 7, 2011[492].   The latter two documents do not contain any recitation setting forth “the grounds upon which the [Sylvester Traylor] proposes to appeal.”   Sylvester Traylor's three filings regarding his quest for free transcripts do not come close to disclosing the grounds which he intends to appeal.

A hearing was held by Judge Cosgrove at the March 7, 2011 short calendar on Sylvester Traylor's appeal of the denial of free transcripts.   At that argument, Sylvester Traylor made no effort to inform the court of “the grounds upon which [he] Traylor] propose[d] to appeal.”   See Transcript of Proceedings, March 7, 2011 (Cosgrove, J.)

That part of § 63–6 which requires the appellant to set forth “the grounds upon which the appellant proposes to appeal” is its raison d'etre, goes to its very core, and is vital to its function.   It correlates with another provision of the § 63–6 which requires the judge to determine which transcripts, or parts thereof, “may be pertinent to the issues on appeal.”  “The application must ․ recite the ․ the grounds upon which the applicant proposes to appeal.”  (Underscoring added.)   As any child knows an elephant without a trunk is not an elephant.   An application without the sworn statement of “the grounds upon which the applicant proposes to appeal” is therefore not the application required by a § 63–6.   The application required by § 63–6 has not been filed.

Section 63–6 also requires the application be filed within the time for taking an appeal.   Judgment was entered on February 15, 2011.   Sylvester Traylor's “Motion To Reargue and Reconsideration,” February 17, 2011[472] was denied on February 18, 2011. [472.01.] The time for taking an appeal is 20 days;  the deadline for filing a § 63–6 application expired on March 10, 2011.   The time for filing a § 63–6 application has long since expired.

“The judge shall authorize a transcript at state expense only of the portions of testimony or proceedings which may be pertinent to the issues on appeal.”   P.B. § 63–6.   Since Sylvester Traylor has not set forth “the grounds on which the applicant proposes to appeal,” the court is unable to determine which “portions of testimony or proceedings which may be pertinent to the issues on appeal.”

Sylvester Traylor has fashioned his attempt to reverse Judge Cosgrove's denial of having the State pay for the cost of the transcripts as an “appeal.”   But this is forbidden by § 63–6.

“The sole remedy of any party desiring the court to review an order concerning the waiver of fees, costs and security shall be by motion for review under Section 66–6.”  Practice Book § 63–6.

There has been a total failure to comply with § 63–6.

The court has no recollection of any decision made in this case which was testimony dependent.   Thus, it is unlikely any transcript is necessary for the appeal.

There are three decisions in this case which are critical.   The first was the decision made on December 21, 2009, barring Sylvester Traylor from representing himself as Administrator of the Estate.   No testimony was elicited on December 21, 2009.   The facts upon which the order barring Sylvester Traylor from representing the (Estate) are uncontested and are evident from the extensive file entries.   The issue presented lies in Sylvester Traylor's erroneous, self-concocted interpretation of Sophie Ellis, Executrix v. Jeffrey Jacobs et al., 118 Conn. 211 (2009)

The dismissal of the six malpractice counts on July 29, 2010, and the decision of February 15, 2011 dismissing the spoliation of evidence and CUTPA counts thereby terminating the entire action, were not based on testimony.   The rationales for these two decisions are set forth in lengthy memoranda.   See Memorandum of Decision, August 11, 2010 [366.04] and Memorandum of Decision, February 15, 2011. [469.]  No transcript is needed for appellate review of either of these decisions.

For appellate review of these three critical decisions, no transcript is necessary.

Sylvester Traylor may be contemplating an appeal of the November 10, 2010 denial of plaintiffs' Motion to Recuse [Disqualify], October 26, 2010. [444, 444.01.]   At a hearing thereon, plaintiffs, although given the opportunity, plaintiffs' counsel declined to present any testimony or other evidence.   A transcript is not needed for appellate review.

Among the many file entries submitted by the plaintiffs, some, if not a distinct majority, of them, have within them copies of extensive parts of the transcripts Sylvester Traylor seeks for free.   Some, if not all, of the transcripts Sylvester Traylor seeks have already been provided to him at State expense.   There may be transcripts which he obtained which the State did not pay for.

The court would not require the State to pay for a transcript which Sylvester Traylor has had, whether or not paid for by the State.

On March 12, 2011, the application to have the State pay for various transcripts was denied noting that a memorandum would follow. [496.]

The very next day, Sylvester Traylor called the court reporter and learned the cost for three transcripts he wanted.   He was informed the cost for them was just short of $500.   He informed he would be in the next day with the money.   As of April 15, 2011, Sylvester Traylor, apparently not so “indigent and unable to pay,” paid for the transcripts and has the transcripts.

For the foregoing reasons, Sylvester Traylor's request to have the State pay for transcripts was and is denied.

Parker, J.T.R.

FOOTNOTES

FN1. Sylvester Traylor..  FN1. Sylvester Traylor.

Parker, Thomas F., J.T.R.