Zbigniew S. Rozbicki v. Eugene M. Gisselbrecht et al. (2011)

RULING ON PLAINTIFF'S MOTION FOR DISQUALIFICATION OF JUDICIAL AUTHORITY (# 159)

By motion filed on September 29, 2011, supplemented by an affidavit filed on October 3, 2011, the plaintiff, Zbigniew S. Rozbicki, moved to disqualify this court from acting on any matter in which the plaintiff appears as an attorney of record or as a pro se party.   This matter came before the court and was considered on October 11, 2011.   The motion is denied.

I

FACTUAL HISTORY

This case is one of a series of related cases in which the plaintiff appeared, variously, as a pro se party and as attorney of record.   In each of these cases, Rozbicki is the named plaintiff, either in an individual or representative capacity.   See Rozbicki v. Gisselbrecht, Docket No. 085004460;  Rozbicki v. Gisselbrecht, Docket No. 094008602;  Rozbicki v. Gisselbrecht, Docket No. 105007246.   The plaintiff's claims, in one or more of these actions, include allegations that he was wrongfully removed as executor of the estate of Kathleen Gisselbrecht, and that the probate court wrongfully denied his claim for $20,000 from that estate.

The litigation of these cases has been particularly contentious, with the files reflecting numerous motions for sanctions filed by both the plaintiff and the defendants.   The plaintiff has filed multiple motions for disqualification of, variously, the defendants' counsel and two judges who are assigned to this judicial district.

II

PROCEDURAL HISTORY

The motion to disqualify judicial authority that is now before the court must be viewed in light of the history of similar motions that have been filed in two of these related cases.   The first motion to disqualify judicial authority appeared in Rozbicki v. Gisselbrecht, Docket No. 105007246.   In that case, the plaintiff filed a motion to stay the case pending a disposition of an appeal from the probate court (# 101).   The court, Roche, J., denied the motion to stay on September 29, 2010 (# 101.01).   On October 21, 2010, the plaintiff moved to disqualify Judge Roche from acting on any matter in which the plaintiff appears as an attorney of record or as a pro se party (# 109).   In an affidavit (# 111) filed in support of the motion to disqualify Judge Roche, the plaintiff alleged that the court's ruling “failed to adhere to the basic principles of judicial impartiality and championed the defendants' cause.”

On March 8, 2011, in that same case, the plaintiff moved to disqualify defendant's counsel (# 121).   On April 26, 2011, this court denied that motion.   On April 28, 2011, the plaintiff moved to disqualify this court (# 131).   In an affidavit submitted in support of his motion, the plaintiff claimed that he believed that this court has “a personal bias or prejudice” concerning him (# 132).   The court denied that motion in an opinion filed on April 28, 2011 (# 131.01).

In the present case, the plaintiff again filed a series of motions to disqualify judicial authority.   On November 4, 2010, the plaintiff filed a motion to reargue a ruling by Judge Roche, arguing that it was “inconceivable” that the court could have entered an order adverse to him “unless it ignored the law, the facts, and was motivated by bias and/or prejudice directed at the plaintiff ․” The plaintiff argued that Judge Roche should be “disqualified from any matter relating to this case until the undersigned's motion for disqualification is adjudicated” (# 111).   Judge Roche denied the plaintiff's motion (# 111.01).

On September 6, 2011, the parties came before this court to argue various motions (# # 141, 145), and, at that time, the plaintiff made an oral motion to disqualify this court.   The oral motion was denied (# 150).   Thereafter, on September 7, 2011, the plaintiff moved for an order of compliance (# 151) which the defendant opposed (# 154).   The court denied the plaintiff's motion and sustained the defendant's objection.   The latter decisions led to the latest motion to disqualify judicial authority.

On September 30, 2011, the plaintiff moved to disqualify this court from acting on any case in which the plaintiff appears as a pro se party or as counsel of record (# 159).   The plaintiff filed an affidavit in support of his motion on October 3, 2011 (# 160).   The motion claims that this court “has a personal bias and prejudice concerning the [plaintiff] both as a party and as an attorney representing clients.”   In particular, the plaintiff claims that this court favors the defendant's counsel.   The plaintiff bases his claim on the ruling in which this court denied the plaintiff's motion for compliance.   The latter ruling, filed on September 19, 2011, held that:  “[t]he motion is denied for the reasons stated in the defendants' objection filed on September 15, 2011.” (# 151.01).

The plaintiff's claim regarding this court's decision to sustain the defendants' objection, and in support of his motion to disqualify judicial authority, is as follows:  “The ruling was based on the wholesale adoption and findings of facts alleged in the defendant's counsel's objection to the plaintiff's motion.   The claims of facts contained in the defendant's objection, were not verified under oath and were in conflict with the allegations of fact on which the plaintiff's motion for compliance was based.   The court conducted no evidentiary hearing before it sustained the defendant's objection, based strictly on the defendant's unproven factual allegations and the rejection of the plaintiff's allegations, to which the court made specific reference for its ruling.”

III

DISCUSSION

The court turns, first, to the plaintiff's motion for compliance (# 151).   That motion claims that a deponent failed to produce items that he was directed to produce at a deposition.   The motion for compliance was accompanied by two exhibits, a “re-notice of deposition” and a “notice of continued deposition,” each of which listed multiple categories of documents to be produced.   The plaintiff's motion to compel, however, failed to identify with any specificity the items that were supposedly not produced at the deposition.   It claimed that the defendants had filed “a series of dilatory motions,” but it failed to identify those motions, with a single exception.   The single “dilatory motion” identified by the plaintiff was a purportedly “frivolous” motion for a protective order that the defendants had filed.   The plaintiff claimed that the latter motion made claims that were devoid of merit and that “the court refused to take action on said motions [sic].”   The plaintiff's motion to compel concluded with a request for “an order for counsel fees to prosecute this motion [to compel production].”

The court now turns to the defendants' objection to the motion to compel and their incorporated motion for sanctions against the plaintiff (# 154).¹  The defendants' objection includes at least seven distinct assertions that, first, justify the court's decision to sustain the defendants' objection and, second, are supported by case law, the case file, or both.   None of the seven assertions requires either the support of an affidavit or an evidentiary hearing.   They are as follows:

1. The defendants claimed that the plaintiff changed the list of documents requested from the original deposition, adding at least four more categories of documents to be produced at the continued deposition that was to go forward on August 9, 2011.   The notices of deposition, filed by the plaintiff as exhibits, establish that the defendants' first claim was correct.

2. The defendants claimed that the notice of continued deposition failed to conform to the practice book requirement that the deponent is entitled to fifteen days' notice of a deposition when documents are requested.   The plaintiff's “notice of continued deposition,” dated July 29, 2011, and including new requests for production, stated that the deposition would continue on August 9, 2011, only eleven days after the date of the notice.   Practice Book § 13–28(d) provides that a deponent has fifteen days in which to serve written objections to requested documents.   The defendants' second claim was correct.

3. The defendants claimed that their motion for a protective order was the only motion they filed relative to the deposition, and they, thus, disagree with the claim that they had filed a “series of dilatory motions.”   The court file does not reflect any defendants' motion regarding the deposition, other than their single motion for a protective order.   The defendants' third claim was correct.

4. The defendants claimed that that the plaintiff's representation, that the court “refused to take action” with regard to their motion 2 regarding the deposition, was not correct, and that the court did, in fact, issue an order relative to their motion.   The court file reflects the following order, issued on August 10, 2011:  “The deposition shall continue.   Eugene Gisselbrecht can have the deposition videotaped, at his own expense.   If the conduct complained of in the motion for protective order is apparent in the video tape, then the defendant may seek additional assistance from the court including the cost of the video taping.”   Thus, the court did, in fact, take action regarding the defendants' motion and so the defendants' fourth claim was correct.

5. The defendants claimed that the plaintiff's notices of deposition were overly broad and cumbersome.   The notices filed by the plaintiff seek the production of documents at a level that is properly characterized as overly broad and cumbersome.³  The defendants' fifth claim was correct.

6. The defendants claimed that the plaintiff “does not list a single specific document that he claims was not provided.”   The plaintiff's motion to compel does, indeed, fail to identify any specific document that was not provided by the deponent.   The defendants' sixth claim was correct.

7. The defendants claimed that the plaintiff sought counsel fees that cannot be recovered by a pro se plaintiff.   The plaintiff, in his affidavit in support of his motion to disqualify judicial authority, does indeed state that he is pro se party.   Pl.'s Aff. ¶ 1 (# 160).   The law is clear that a pro se party is not entitled to claim attorneys fees.  Dunn v. Peter L. Leepson, P.C., 79 Conn.App. 366, 372, 830 A.2d 325, cert. denied, 266 Conn. 923, 835 A.2d 472 (2003).   The defendants' seventh claim was correct.

In summary, the defendants' objection to the motion to compel set forth multiple bases for denying the motion to compel, all of which were verifiable by recourse to the case file, the practice book, or other legal authority.   It was, therefore, appropriate for the court to rely on any or all of the foregoing claims in deciding to deny the plaintiff's motion to compel.   Further, and as was stated, the motion to compel was defective on its face.

The Code of Judicial Conduct provides in relevant part that “[a] judge shall perform the duties of judicial office ․ without bias or prejudice.”  Code of Judicial Conduct § 2.3. Section 2.11 of the Code of Judicial Conduct provides that “[a] judge shall disqualify himself ․ in any proceeding in which the judge's impartiality might reasonably be questioned including, but not limited to, the following circumstances:  (1) the judge has a personal bias or prejudice concerning a party or a party's lawyer ․”[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 [stain] ⁴ on the court that cannot easily be erased.

Attorneys 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, 123 Conn.App. 137, 144–45, 1 A.3d 260 (2010).

“[S]peculation is insufficient to establish an appearance of impropriety ․ [A] factual basis is necessary to determine whether a reasonable person, knowing all of the circumstances, might reasonably question the trial judge's impartiality ․ It is a fundamental principle that to demonstrate bias sufficient to support a claim of judicial disqualification, the due administration of justice requires that such a demonstration be based on more than opinion or conclusion ․ Vague and unverified assertions of opinion, speculation and conjecture cannot support a motion to recuse ․ Rather, it is the moving party's burden to prove that the conduct in question gives rise to a reasonable appearance of impropriety.”  (Citations omitted;  internal quotation marks omitted.)  Tracey v. Tracey, 97 Conn.App. 278, 284–85, 903 A.2d 679 (2006).

The denial of the plaintiff's motion to compel would have been justified based on the shortcomings in the motion itself.   The defendants identified additional, multiple, objectively identifiable bases for denying the plaintiff's motion.   Therefore, it was appropriate for the court to base its ruling on points set forth in the defendants' memorandum.   Finally, the granting or denial of a motion to compel rests in the sound discretion of the court.  Cavolick v. DeSimone, 88 Conn.App. 638, 653–54, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005).

The plaintiff's conclusion that the court's ruling was the product of bias and prejudice is rank speculation based on nothing more than the fact that the court did not rule in his favor.   Therefore, his decision to move for disqualification of judicial authority was 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, supra, 123 Conn.App. 146.   In summary, there is no merit to the plaintiff's claims of prejudice and bias.

IV

CONCLUSION

The motion to disqualify this court from hearing matters in which the plaintiff appears as counsel of record or as a pro se party is denied.

So ordered.

BY THE COURT,

John A. Danaher III

FOOTNOTES

FN1. The court declined to order the sanctions sought by the defendants..  FN1. The court declined to order the sanctions sought by the defendants.

FN2. The plaintiff claimed that the court had refused to take action “on said motions” but, as has been stated, the court is only able to identify a single motion filed by the defendants relative to the deposition..  FN2. The plaintiff claimed that the court had refused to take action “on said motions” but, as has been stated, the court is only able to identify a single motion filed by the defendants relative to the deposition.

FN3. See, e.g., Pl's “re-notice of deposition” ¶¶ 3, 6;  Pl.'s “notice of continued deposition” ¶¶ 5, 8..  FN3. See, e.g., Pl's “re-notice of deposition” ¶¶ 3, 6;  Pl.'s “notice of continued deposition” ¶¶ 5, 8.

FN4. Wendt v. Wendt, 59 Conn.App. 656, 697, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000)..  FN4. Wendt v. Wendt, 59 Conn.App. 656, 697, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000).

Danaher, John A., J.