Keith M. Curran v. Anna Zubkova et al. (2015)

MEMORANDUM OF DECISION

This is the latest of five actions filed to date by the son of Eileen B. Curran.  The suits stem from conservatorship proceedings conducted in the Probate Court for the Northeast District (# 26).¹  Plaintiff filed this case as attorney in fact for his mother, pursuant to a power of attorney she issued to him.  In the original complaint, plaintiff alleges that on June 26, 2015, he requested that the Probate Court continue a hearing then scheduled for June 30, both on the ground that he had inadequate notice of that hearing and that the bias of the probate judge involved made it impossible for him to receive a fair hearing.  On June 29, that court denied that motion, and plaintiff immediately filed his complaint.  He seeks an order of this court setting aside that decision and conducting a complete trial de novo of all issues presented to the lower court.  By his amended complaint (# 147) dated August 25, prepared by an attorney, plaintiff's only claim for relief relates to the timing of the hearing.

The named defendant Anna Zubkova had been Eileen Curran's attorney and conservator until approximately March 18 of 2015, when the court released Eileen from the voluntary conservatorship.²  On June 29, plaintiff also named as defendants Paul Kaplan (Zubkova's attorney), Probate Judge Leah Schad, and Probate Court Administrator Thomas Gaffey.  Plaintiff has subsequently withdrawn his action as to these three, leaving Zubkova as the sole remaining defendant.

Before the court at this time is her July 31 motion to dismiss the complaint for lack of jurisdiction (# 120), as amended by a document (# 137) filed on August 24.  Also, the court will resolve by this memorandum a motion for contempt (# 148) which plaintiff filed against her on August 28.  On both of these issues, the parties requested and the court allowed an evidentiary hearing which the court conducted on October 1.

I. The Motion to Dismiss

While Zubkova raises two issues in her initial challenge to jurisdiction, and a third via the amendment, her claims that the pending action is moot is dispositive and will alone be examined.³

“Mootness is a threshold issue that implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties.”  (Internal quotation marks omitted.)  Curley v. Kaiser, 112 Conn.App. 213, 229 (2009).  “[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12 (2003).”  [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.”  (Internal quotation marks omitted.)  May v. Coffey, 291 Conn. 106, 113 (2009).

“A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction.”  ․ [J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter.”  (Internal quotation marks omitted.)  Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86 (2008).  “Since mootness implicates subject matter jurisdiction ․ it can be raised at any stage of the proceedings.”  (Citation omitted;  internal quotation marks omitted.)  Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 240 Conn. 1, 6 (1997).  Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court's subject matter jurisdiction.  Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable.  Once raised, the court must consider and decide this jurisdictional challenge before proceeding further;  Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839, n.6 (2003).

The essence of defendant's argument is that after June 29, and without holding any hearing on June 30, Judge Schad recused herself from the Curran probate proceedings and requested that the probate court administrator transfer the entire case to a different probate court.  Simultaneously, she continued the hearing on which plaintiff had sought a continuance to an undetermined later date, and no such hearing had been conducted as of the date on which this court heard the parties' arguments.  These facts are supported by exhibits ⁴ attached to her memoranda.  Instead of contradicting them, plaintiff relies on a broad claim of right to a full trial in this court on all issues that concern him, notwithstanding the probate court's belated but full compliance with the requests he made.

Assuming, arguendo, that the probate judge erred in her June 29 denial of plaintiff's request, her June 30 reversal in his favor left nothing for this court to resolve.  A new probate judge will be dealing with the probate proceedings, and to now order that the June 30 hearing be “continued” would be an absurdity.

There is no practical relief which this court can provide to plaintiff within the terms of the complaint, either as originally framed or as amended.  The action is moot.

II. The Contempt Motion

At the time he filed his complaint on June 29, plaintiff also filed a motion here to stay all proceedings before the probate court.  On August 24, defendant filed an objection thereto, largely on the basis of arguments she advanced in support of her original and amended motions to dismiss.  By his motion of August 28, plaintiff contends that Zubkova ought to be sanctioned because “such Objection was so devoid of valid legal argument that its filing itself is sanctionable.”

On previous occasions, our Supreme Court has ruled upon claims that attorneys had acted tortiously in their pursuit of their client's objectives.  In Mozzochi v. Beck, 204 Conn 490 (1987), for instance, the wrong addressed was abuse of process.  In Simms v. Seaman, 308 Conn. 523 (2013), plaintiff pursued adverse counsel on theories of fraud and intentional infliction of emotional distress.  An early Connecticut case, Blakeslee & Sons v. Carroll, 64 Conn. 223 (1894), adopted an “absolute immunity for defamatory statements made in the course of judicial proceedings [that] has been recognized by common-law courts for many centuries and can be traced back to medieval England.”  308 Conn. 523, 531.  In all the cases cited, the Court recognized a privilege on the part of counsel to raise and argue issues germane to their case without fear of having to defend a subsequent action claiming they had deviated from the truth.

Though these cases involved causes of action filed against opposing counsel, and indicated, for instance in Seaman at 536, that the inherent contempt powers of the court serve as a deterrent to litigation misconduct, the rule discernible in all is that in the absence of actual malice, litigants (and their advocates) in our adversarial model must be afforded some latitude in expressing their opposition to the premises advanced by their opponents lest they suffer a chill producing silence, to their own detriment.  Here, where the court is asked to use its contempt powers to punish a litigant whose adversary claims has deviated from permissible advocacy, the rule expressed in the cited cases is a useful guide against which to measure such claims.

Here, it is not a close question.  The court has accepted the defendant's argument that this action ought to be dismissed.  She can hardly be faulted for raising those same arguments in support of another aspect of this case.  There is no contempt on her part.

III. Conclusion

The motion to dismiss (# 120, and as amended, # 137) is granted, and plaintiff's objection (# 132) is overruled.  The motion for contempt (# 148) is denied.

Boland, J.

FOOTNOTES

FN1. The suits, all filed in Windham Judicial District, bear the following captions and docket numbers:  Keith Curran and Haiyong Tao v. Anna Zubkova, CV 13 5005794;  Keith M. Curran and Haiyong Tao v. Court of Probate, Northeast Probate District (26), CV 14 5005817;  Haiyong Tao and Keith M. Curran v. Anna Zubkova, CV 14 5005838;  Keith Curran v. Anna Zubkova, CV 15 5006089;  and Keith Curran v. Anna Zubkova, CV 15 5006090.  Haiyong Tao is the wife of Keith Curran..  FN1. The suits, all filed in Windham Judicial District, bear the following captions and docket numbers:  Keith Curran and Haiyong Tao v. Anna Zubkova, CV 13 5005794;  Keith M. Curran and Haiyong Tao v. Court of Probate, Northeast Probate District (26), CV 14 5005817;  Haiyong Tao and Keith M. Curran v. Anna Zubkova, CV 14 5005838;  Keith Curran v. Anna Zubkova, CV 15 5006089;  and Keith Curran v. Anna Zubkova, CV 15 5006090.  Haiyong Tao is the wife of Keith Curran.

FN2. See Exhibit 1 to motion to dismiss, a copy of the decree of March 18..  FN2. See Exhibit 1 to motion to dismiss, a copy of the decree of March 18.

FN3. Her second issue in # 120 concerns the fact that plaintiff, who is not an attorney, prepared and signed the complaint on behalf of his ward;  defendant argues that this' is a nullity rendering the action void from its inception under the principles stated in Ellis v. Cohen, 118 Conn.App. 211 (2009).  Her later amendment bases a lack of personal jurisdiction claim upon this same factual circumstance.  In the present case, the issue has become complicated by the subsequent appearance of counsel on plaintiff's behalf, and the filing of an amended complaint by that attorney which does not suffer from the same improprieties.  Because her other original issue has become dispositive, the court will leave resolution of the complaint issuance matters to another day..  FN3. Her second issue in # 120 concerns the fact that plaintiff, who is not an attorney, prepared and signed the complaint on behalf of his ward;  defendant argues that this' is a nullity rendering the action void from its inception under the principles stated in Ellis v. Cohen, 118 Conn.App. 211 (2009).  Her later amendment bases a lack of personal jurisdiction claim upon this same factual circumstance.  In the present case, the issue has become complicated by the subsequent appearance of counsel on plaintiff's behalf, and the filing of an amended complaint by that attorney which does not suffer from the same improprieties.  Because her other original issue has become dispositive, the court will leave resolution of the complaint issuance matters to another day.

FN4. See Exhibit 7 (# 128) to original motion to dismiss, and exhibit 1 (# 139) to the amendment..  FN4. See Exhibit 7 (# 128) to original motion to dismiss, and exhibit 1 (# 139) to the amendment.

Boland, John D., S.J.