Chief Disciplinary Counsel v. Rozbicki ( 2014 )

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CHIEF DISCIPLINARY COUNSEL v.
ZBIGNIEW S. ROZBICKI
(AC 35633)
Alvord, Sheldon and Harper, Js.
Argued February 4—officially released May 27, 2014
(Appeal from Superior Court, judicial district of
Litchfield, Hon. Thomas F. Upson, judge trial referee.)
Zbigniew S. Rozbicki, self-represented, the appel-
lant (defendant).
Suzanne B. Sutton, first assistant chief disciplinary
counsel, with whom was Beth Baldwin, assistant chief
disciplinary counsel, for the appellee (plaintiff).
Opinion
SHELDON, J. In this presentment filed by the plain-
tiff, Chief Disciplinary Counsel, alleging misconduct by
the defendant, Attorney Zbigniew S. Rozbicki, the
defendant appeals from the judgment of the trial court
concluding that he violated various rules of professional
conduct in the course of his administration of the estate
of Kathleen Gisselbrecht (decedent), and ordering, inter
alia, that he be suspended from the practice of law for
a period of two years. On appeal, the defendant claims
that (1) the Statewide Grievance Committee (grievance
committee) failed to exhaust its administrative reme-
dies, and thus the plaintiff lacked standing to bring, and
the court lacked jurisdiction to hear, this presentment;
(2) the court erred in failing to permit him to introduce
evidence concerning his claims of res judicata and col-
lateral estoppel (preclusion claims) at trial on the
ground that the court had already ruled on those issues
on his earlier motion for summary judgment; (3) the
court deprived him of his constitutional right to due
process when it denied all of his requests for discovery;
(4) the trial judge did not have authority, as a judge
trial referee, to preside over a presentment; and (5) the
court abused its discretion in ordering his suspension
from the practice of law for a period of two years.
A recitation of the tortuous factual background of
this case is not necessary to our resolution of the claims
on appeal. We thus set forth the following truncated
version of largely undisputed facts, as found by the trial
court, that have brought this matter before us. The
defendant was the longtime employer and friend of the
decedent. After the decedent’s passing on April 17, 2007,
the defendant was appointed executor of her estate. The
decedent had an Allstate life insurance policy (policy) in
the amount of $100,000, which named as beneficiaries
her sister, Ann Marie Roszas, and her brother, Edward
Gisselbrecht.1 In her will, the decedent directed that
the proceeds from the policy be used to pay off the
mortgage on her home, and to pay $20,000 to the defen-
dant as reimbursement for funds he had advanced to
her for the purchase of her home. In July, 2007, the
defendant forwarded to Roszas and Gisselbrecht the
life insurance proceeds. In October, 2007, the dece-
dent’s home was sold, and the outstanding mortgage
on the property was paid from the proceeds of that
sale. The defendant was not reimbursed the $20,000
that he had loaned the decedent. Following a series
of increasingly hostile and disparaging correspondence
among the parties, the defendant commenced litigation
against Roszas and Gisselbrecht seeking the recovery
of the life insurance proceeds. The defendant paid the
$20,000 to himself from the estate and also filed a claim
for attorneys’ fees incurred in a personal injury case in
which he represented the decedent prior to her death.
On January 23, 2009, Roszas filed a grievance com-
plaint alleging misconduct by the defendant in his
administration of the decedent’s estate. The local panel
of the grievance committee (grievance panel) found
probable cause for the violation by the defendant of
various rules of professional conduct, and thus referred
the case to the grievance committee. Following an evi-
dentiary hearing, the grievance committee issued a writ-
ten decision dated September 4, 2009, dismissing that
complaint on the ground that Roszas had not presented
clear and convincing evidence of an ethical violation
by the defendant.
On March 23, 2009, Gisselbrecht filed a grievance
complaint also alleging misconduct by the defendant
in his administration of the decedent’s estate. On May
6, 2010, Christina Falzarano, the decedent’s niece, also
filed a grievance complaint alleging misconduct by the
defendant. Following a finding of probable cause by
the grievance panel, the grievance committee held a
consolidated evidentiary hearing on those two com-
plaints. On November 23, 2010, the grievance committee
issued a written decision wherein it found by clear and
convincing evidence that the defendant had engaged in
unethical conduct. Specifically, it found that the con-
duct of the defendant had constituted: a lack of dili-
gence in violation of rule 1.3 of the Rules of Professional
Conduct; a conflict of interest in violation of rule 1.7
of the Rules of Professional Conduct; and conduct prej-
udicial to the administration of justice in violation of
rule 8.4 (4) of the Rules of Professional Conduct. On
the basis of those findings, the grievance committee
directed the plaintiff to bring a presentment against the
defendant. The plaintiff did so on May 3, 2011.
Following a lengthy motions history, which will be
discussed more fully herein as necessary, the court held
an evidentiary hearing, after which the parties filed
posttrial briefs with the court. On March 8, 2013, the
court issued a memorandum of decision in which it
found by clear and convincing evidence that the defen-
dant had violated the following Rules of Professional
Conduct: rule 1.7 (a) (2), by ‘‘plac[ing] his own interest
in securing his personal claims ahead of his fiduciary
responsibilities to the estate and the beneficiaries; rule
1.3, by failing to diligently represent the interests of the
estate, which still remained unresolved almost six years
after the death of the decedent; rules 1.2 (a) and 1.4
(a), by failing to communicate with the beneficiaries of
the estate as to his representation after the beneficiaries
objected to the defendant’s personal claim against the
estate; rules 1.4 (b) and 2.1, by failing to exercise inde-
pendent professional judgment and failing to render
candid advice to the beneficiaries concerning the
options available to administer the estate; rule 4.4 (a),
by filing a frivolous lawsuit against two beneficiaries
of the estate and by sending harassing correspondence
to the beneficiaries and to the attorney hired by the
beneficiaries; and rule 8.4, by committing numerous
acts that were prejudicial to the administration of jus-
tice. Accordingly, the court suspended the defendant
from the practice of law for two years and required
that, prior to reinstatement, he pass the Multistate Pro-
fessional Responsibility Examination. The defendant
thereafter filed a motion for a new trial, which the court
denied, and this appeal followed.2 Additional facts will
be set forth as necessary.
Before we address the defendant’s specific claims on
appeal, we set forth the overarching principles govern-
ing the relationship between the Superior Court and
members of the bar. ‘‘The Superior Court possesses
inherent authority to regulate attorney conduct and to
discipline the members of the bar. . . . The judiciary
has the power to admit attorneys to practice and to
disbar them . . . to fix the qualifications of those to
be admitted . . . and to define what constitutes the
practice of law. . . . In the exercise of its disciplinary
power, the Superior Court has adopted the Code of
Professional Responsibility [now the Rules of Profes-
sional Conduct].’’ (Citations omitted; internal quotation
marks omitted.) Massameno v. Statewide Grievance
Committee, 234 Conn. 539, 553–54, 663 A.2d 317 (1995).
‘‘Disciplinary proceedings are for the purpose of pre-
serving the courts from the official ministration of per-
sons unfit to practice in them.’’ (Internal quotation
marks omitted.) Ex Parte Wall, 107 U.S. 265, 288, 2 S.
Ct. 569, 27 L. Ed. 552 (1883). ‘‘The proceeding to disbar
[or suspend] an attorney is neither a civil action nor a
criminal proceeding, but is a proceeding sui generis,
the object of which is not the punishment of the
offender, but the protection of the court. . . . Once
the complaint is made, the court controls the situation
and procedure, in its discretion, as the interests of jus-
tice may seem to it to require. . . . [T]he power of the
courts is left unfettered to act as situations, as they
may arise, may seem to require, for efficient discipline
of misconduct and the purging of the bar from the
taint of unfit membership. Such statutes as ours are
not restrictive of the inherent powers which reside in
courts to inquire into the conduct of their own officers,
and to discipline them for misconduct. . . . In [disci-
plinary] proceedings . . . therefore, the attorney’s
relations to the tribunal and the character and purpose
of the inquiry are such that unless it clearly appears
that his rights have in some substantial way been denied
him, the action of the court will not be set aside upon
review.’’ (Citations omitted; internal quotation marks
omitted.) Statewide Grievance Committee v. Rozbicki,
211 Conn. 232, 238–39, 558 A.2d 986 (1989), cert. denied,
502 U.S. 1094, 112 S. Ct. 1170, 117 L. Ed. 2d 416 (1992).
‘‘[T]he clearly erroneous standard . . . is the prefer-
able standard of review in attorney grievance appeals.’’
Brunswick v. Statewide Grievance Committee, 103
Conn. App. 601, 613, 931 A.2d 319, cert. denied, 284
Conn. 929, 934 A.2d 244 (2007). ‘‘The clearly erroneous
standard of review provides that [a] court’s determina-
tion is clearly erroneous only in cases in which the
record contains no evidence to support it, or in cases
in which there is evidence, but the reviewing court is
left with the definite and firm conviction that a mistake
has been made.’’ (Internal quotation marks omitted.)
Id., 612. With these principles in mind, we turn to the
claims on appeal.
I
We begin with defendant’s challenge of the trial
court’s subject matter jurisdiction over this present-
ment.3 The defendant claims that the grievance commit-
tee’s failure to exhaust its administrative remedies and
the plaintiff’s lack of standing deprived the court of
subject matter jurisdiction over the presentment.
Although the defendant’s argument is difficult to follow,
he appears to be claiming that the November 23, 2010
decision of the grievance committee was a proposed
decision by a reviewing committee that was not
reviewed by the grievance committee, and, thus that
the grievance committee had not issued a final decision
on the reviewing committee’s proposed decision. The
defendant argues that that failure by the grievance com-
mittee to review the proposed decision of the reviewing
committee constituted a failure by the grievance com-
mittee to exhaust its administrative remedies and, fur-
ther, that because there was no final decision rendered
by the grievance committee, the plaintiff did not have
standing to file the presentment, and, therefore, the
court did not have subject matter jurisdiction. We
are unpersuaded.
The issue of subject matter jurisdiction is a question
of law over which our review is plenary. Scalise v. East
Greyrock, LLC, 148 Conn. App. 176, 180, 85 A.3d 7
(2014). ‘‘There are three possible sources for the author-
ity of courts to sanction counsel and pro se parties.
These are inherent power, statutory power, and the
power conferred by published rules of the court.’’ In
the Matter of Presnick, 19 Conn. App. 340, 347, 563 A.2d
299, cert. denied, 213 Conn. 801, 567 A.2d 833 (1989).
‘‘That power may be expressly recognized by rule or
statute but it exists independently of either and arises
because of the control that must necessarily be vested
in courts in order for them to be able to manage their
own affairs as to achieve an orderly and expeditious
disposition of cases.’’ Id.
The defendant’s claim is based upon an interpretation
of the applicable statutes, without regard to our rules
of practice, which have been amended. As the plaintiff
aptly points out, those statutes, as previously noted,
must be read in harmony with the applicable rules of
practice. Prior to October 1, 1997, reviewing commit-
tees issued only proposed decisions, upon which the
parties were allowed to comment in writing prior to
the grievance committee’s review and issuance of a
final decision. For grievance complaints filed on or after
October 1, 1997, however, reviewing committees issue
final decisions, subject to a defendant’s right to request
review by the grievance committee. Here, therefore, the
reviewing committee’s decision directing the plaintiff to
file this presentment was a final decision. The defendant
had the opportunity to request review of that decision,
but in the absence of such a request by the defendant,
there is no additional administrative remedy of which
the plaintiff was required to avail itself prior to the
commencement of this presentment. Accordingly, the
plaintiff did not lack standing, and the court did not
lack subject matter jurisdiction, in this matter.
II
The defendant next claims that the court erred in
precluding the introduction of the Roszas complaint
into evidence and refusing to permit him to relitigate
his preclusion claims on the ground that those issues
had already been decided by the court.4 We disagree.
On March 13, 2012, the defendant filed a motion for
summary judgment on the ground,5 inter alia, that the
allegations of misconduct giving rise to this present-
ment are duplicative of those allegations that were
heard and dismissed by the grievance committee in
the Roszas proceeding, and thus that the claims herein
should be precluded as duplicative.6 By memorandum
of decision issued on April 2, 2012, the court denied
the motion for summary judgment on the ground that
there is neither identity nor privity between Roszas,
Gisselbrecht and Falzarano, which is required for pre-
clusion. The defendant did not challenge that ruling on
appeal.7 The defendant thereafter filed an answer and
special defenses claiming, inter alia, res judicata and
collateral estoppel.8
At trial, the defendant attempted to introduce into
evidence the complaint that Roszas had filed with the
grievance committee. The plaintiff objected to its
admission, and the court sustained the objection on the
ground that it was irrelevant because the preclusion
claims had already been considered and rejected by the
court on summary judgment. The defendant alluded
to additional evidence that would bear on the court’s
jurisdiction, which, according to the trial transcript,
piqued the court’s interest, but he never expounded
upon that reference, nor did he attempt to introduce
any evidence bearing on it.
In his posttrial brief, the defendant again raised his
preclusion claims, arguing that ‘‘the court is bound to
reconsider the res judicata and collateral estoppel
issues because these issues strike at the heart of subject
matter jurisdiction.’’ He contended that ‘‘[t]he three suc-
cessive grievance complaints, filed by the sister, brother
and daughter of the same family within three months,
which contained essentially the same allegations, is vex-
atious by its very nature. The dismissal of the first
grievance by the Roszas committee was not only bind-
ing on the subcommittee which determined the Gissel-
brecht and Falzarano complaints, but also on the
Superior Court on subject matter jurisdiction grounds.’’
In its March 8, 2013, memorandum of decision, the
court again declined to reconsider the defendant’s pre-
clusion claims on the ground that they had been
addressed on the merits in its memorandum of decision
denying the defendant’s motion for summary judgment.
Now, on appeal, the defendant claims that the court
improperly refused to reconsider his preclusion claims,
contending that those claims implicated the court’s sub-
ject matter jurisdiction and that ‘‘[t]he content and fac-
tual basis of the Roszas grievance was not only relevant,
but indispensable for the court to make [a] comparison
and findings of whether the grievances at bar were
duplicat[ive] and thus barred under the jurisdictional
principle of issue preclusion.’’ The defendant’s state-
ment of the law, however, is inaccurate. Neither res
judicata nor collateral estoppel implicates subject mat-
ter jurisdiction. Wilcox v. Webster Ins., Inc., 294 Conn.
206, 223, 982 A.2d 1053 (2009).
Moreover, assuming, without deciding, that the
defendant was entitled to again raise his preclusion
claims at trial after the court rejected them on summary
judgment,9 he made no offer or proof as to any new
information that he intended to introduce in support
of those claims that was not already before the court
in the summary judgment proceeding or at trial.
Although the defendant, at trial, noted his intention to
introduce additional evidence in support of his preclu-
sion claims, he did not indicate what that new evidence
was or what it would have proven. In our review of the
record, the only offer of proof that we were able to
find, and it is the only concrete offer cited to by the
defendant in his brief to this court or in his posttrial
brief, is his attempt to introduce into evidence the com-
plaint in the Roszas grievance proceeding. In his
attempt to introduce that evidence, the defendant sim-
ply indicated that he was offering it to show that the
three grievances were the ‘‘same.’’ He did not make any
assertion that it went to the privity of the parties, which
was the basis upon which the trial court had rejected his
preclusion claims in his motion for summary judgment.
The court had already considered the decision issued
by the grievance committee in the Roszas matter and
the transcript of the Roszas proceeding before the griev-
ance committee, which had been admitted as a full
exhibit at trial. We cannot conceive of what additional
information could have been gleaned from the com-
plaint in that matter that was not readily ascertainable
from the fuller and more extensive record of those
proceedings that was already in evidence. And the
defendant does not direct us to any such information.
Under the circumstances of this case, in which the
defendant made no offer of proof in support of his
attempt to relitigate his preclusion claims, we cannot
conclude that the court erred in declining to revisit
those claims.
III
The defendant next claims that he was denied his
constitutional right to due process of law when the
court denied all of his discovery requests based upon
the erroneous principle that an attorney is not entitled
to any discovery in a disciplinary proceeding, which
was the argument advanced by the plaintiff in a motion
for a protective order. Our review of the record reveals
that the court did not, in fact, deny ‘‘all’’ of the defen-
dant’s discovery requests. Rather, the court denied the
plaintiff’s motion for a protective order and ordered
that ‘‘the [defendant’s] motion for discovery shall be
specific accompanied by a written statement demon-
strating the reason and substantial need for dis-
coverable material.’’ Because the defendant was
permitted to pursue discovery, albeit within the con-
straints ordered by the court, the defendant’s claim is
without merit.
IV
The defendant next claims that the court, Hon.
Thomas F. Upson, judge trial referee, lacked ‘‘jurisdic-
tional authority over [the] attorney presentment,’’ and
thus its March 8, 2013 judgment is void as a matter of
law because Judge Upson is a judge trial referee.
At no time before or during trial did the defendant
challenge the court’s authority to preside over the pre-
sentment. The defendant did not object to Judge
Upson’s consideration of the presentment until he
received an unfavorable outcome in the proceeding.
After the court issued its decision, the defendant moved
to dismiss the presentment as ‘‘ipso facto void’’ on the
ground that Judge Upson, as a judge trial referee, did
not have authority to adjudicate the presentment. On
April 12, 2013, the court denied that motion. Because
General Statutes § 52-434a (a) affords judge trial refer-
ees the same powers and jurisdiction as judges of the
court from which proceedings have been referred to
them, the defendant’s claim that Judge Upson lacked
authority to preside over the presentment is without
merit.
V
The defendant finally claims that the court abused
its discretion in suspending him from the practice of
law for a period of two years because ‘‘[t]here was no
evidence in the defendant’s conduct of moral turpitude
. . . [n]or was the defendant involved in any acts of
dishonest conduct . . . .’’10 We disagree.
‘‘A comprehensive disciplinary scheme has been
established to safeguard the administration of justice,
and [is] designed to preserve public confidence in the
system and to protect the public and the court from
unfit practitioners.’’ (Internal quotation marks omitted.)
Statewide Grievance Comm. v. Burton, 88 Conn. App.
523, 530, 871 A.2d 380 (2005), aff’d, 282 Conn. 1, 917
A.2d 966 (2007). ‘‘An attorney, as an officer of the court
in the administration of justice, is continually account-
able to it for the manner in which he exercises the
privilege which has been accorded to him. His admis-
sion is upon the implied condition that his continued
enjoyment of the right conferred is dependent upon his
remaining a fit and safe person to exercise it, so that
when he, by misconduct in any capacity, discloses that
he has become or is an unfit or unsafe person to be
entrusted with the responsibilities and obligations of
an attorney, his right to continue in the enjoyment of
his professional privilege may and ought to be declared
forfeited. . . . Therefore, [i]f a court disciplines an
attorney, it does so not to mete out punishment to an
offender, but [so] that the administration of justice may
be safeguarded and the courts and the public protected
from the misconduct or unfitness of those who are
licensed to perform the important functions of the legal
profession.’’ (Internal quotation marks omitted.) Id.,
530–31. ‘‘The trial court has inherent judicial power,
derived from judicial responsibility for the administra-
tion of justice, to exercise sound discretion to deter-
mine what sanction to impose in light of the entire
record before it.’’ Statewide Grievance Committee v.
Shluger, 230 Conn. 668, 678, 646 A.2d 781 (1994).
The American Bar Association has promulgated stan-
dards for the imposition of sanctions. See Burton v.
Mottolese, 267 Conn. 1, 55, 835 A.2d 998 (2003). ‘‘[A]fter
a finding of misconduct, a court should consider: (1)
the nature of the duty violated; (2) the attorney’s mental
state; (3) the potential or actual injury stemming from
the attorney’s misconduct; and (4) the existence of
aggravating or mitigation factors.’’ Id.
The aggravating factors referenced in the standards
include ‘‘(a) prior disciplinary offenses; (b) dishonest or
selfish motive; (c) a pattern of misconduct; (d) multiple
offenses; (e) bad faith obstruction of the disciplinary
proceeding by intentionally failing to comply with rules
or orders of the disciplinary agency; (f) submission
of false evidence, false statements, or other deceptive
practices during the disciplinary process; (g) refusal to
acknowledge wrongful nature of conduct; (h) vulnera-
bility of victim; (i) substantial experience in the practice
of law; [and] (j) indifference to making restitution.’’
(Internal quotation marks omitted.) Id. The mitigation
factors include: ‘‘(a) absence of a prior disciplinary
record; (b) absence of a dishonest or selfish motive;
(c) personal or emotional problems; (d) timely good
faith effort to make restitution or to rectify conse-
quences of misconduct; (e) full and free disclosure to
disciplinary board or cooperative attitude toward pro-
ceedings; (f) inexperience in the practice of law; (g)
character or reputation; (h) physical or mental disability
or impairment; (i) delay in disciplinary proceedings; (j)
interim rehabilitation; (k) imposition of other penalties
or sanctions; (l) remorse; [and] (m) remoteness of prior
offenses.’’ (Internal quotation marks omitted.) Id.,
55–56.
In imposing the sanction of suspension, the court
stated that it had considered both aggravating and miti-
gation factors in this case. The court noted that the
defendant previously had been disciplined by the griev-
ance committee for professional misconduct and deter-
mined that his conduct at issue here ‘‘cannot be viewed
in isolation from his previous violation.’’ The court
found that, here, the defendant ‘‘demonstrated a pattern
of misconduct, resulting in multiple violations of the
Rules of Professional Conduct,’’ and that, at the time
he committed these violations, he ‘‘was a seasoned
member’’ of the bar who had been handling probate
matters since 1969. The court found that the defendant
‘‘committed acts of misconduct which violated his duty
to the public, the legal system and the profession. [He]
acted with a self-interested motive, and his actions were
intentional and made with a full knowledge of the conse-
quences.’’ The court further noted that the defendant’s
‘‘conduct reflect[ed] an insensitivity to his obligation of
absolute fiduciary fidelity to those whom he [counseled]
combined with a pattern of self-dealing and self-enrich-
ment at their expense,’’ and that his ‘‘ethical misconduct
indicate[d] a deficiency of character and integrity
incompatible with the high ethical standards required of
attorneys who practice before the courts of this state.’’
(Internal quotation marks omitted.) The court con-
cluded that the defendant had ‘‘shown no remorse or
recognition of the severity of the situation,’’ that he
‘‘was fully able to comprehend the nature of his actions
and to know they were wrong,’’ but that he was
‘‘totally unrepentant.’’
Other than setting forth definitions of ‘‘moral turpi-
tude’’ and ‘‘dishonest conduct,’’ the defendant provides
no analysis of his challenge of the sanction imposed
upon him. On the basis of the court’s findings of miscon-
duct, which have not been challenged by the defendant,
and its commentary on those findings, we cannot con-
clude that the court abused its discretion in suspending
the defendant from the practice of law for two years.
Accordingly, the defendant’s claim fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In this opinion, we refer to Kathleen Gisselbrecht as the decedent and
to Edward Gisselbrecht as Gisselbrecht.
2
On March 14, 2013, the plaintiff filed a motion to modify the judgment
to require the defendant to cooperate fully with the trustee appointed pursu-
ant to Practice Book § 2-64 as a condition of reinstatement. The trial court
granted the plaintiff’s motion to modify on March 15, 2013.
On March 27, 2013, the defendant filed a ‘‘motion to dismiss presentment
complaint and to declare the judgment of March 8, 2013 to be ipso facto
void.’’ The trial court denied the defendant’s motion to dismiss on April 12,
2013. On March 18, 2013, the defendant filed a ‘‘motion for mistrial, motion
to set aside judgment based on judicial misconduct and motion for new
trial.’’ The court denied that motion as well.
3
We note that the defendant has raised several challenges to the trial
court’s judgment that he categorizes as ‘‘constitutional’’ or ‘‘jurisdictional.’’
Merely attaching those words to a claim of error, however, does not implicate
those legal principles.
4
The defendant also passively suggests that the current presentment is
barred by the prior pending action doctrine. Because he does nothing more
than mention that doctrine in the midst of his other preclusion claims, he
has not briefed the application of that doctrine to the circumstances at
hand, and we thus deem any claim grounded on the doctrine abandoned.
The defendant also suggests that this case is barred by the doctrine of
judicial estoppel because it is duplicative of the Roszas proceeding and
constitutes ‘‘an attempt to oppress the [defendant] and to subvert the griev-
ance process and judicial integrity whereby the complainants are seeking
an inconsistent result from that issued by the . . . grievance committee
in the Rozsas decision, from this court, on the same facts and on matters
arising from a common pecuniary interest.’’ Because this argument is mis-
placed in calling for the application of the doctrine of judicial estoppel
and, rather, essentially encompasses the defendant’s preclusion claims as
discussed herein, we decline to address this claim separately.
5
The defendant first raised his preclusion claims at the hearing before
the grievance committee, which noted that the dismissal of the Roszas
complaint did have ‘‘some preclusive effect on the current matters,’’ and
accorded some weight to the decision of the grievance committee in that
matter. On the basis of the grievance committee’s conclusion in the Roszas
matter that there was no violation of rule 1.1 of the Rules of Professional
Conduct regarding incompetent representation, the grievance committee
here declined to consider the probable cause findings regarding potential
violations of rule 1.1.
6
We are mindful that the doctrines of res judicata and collateral estoppel
are not identical in their application or their proof. The defendant, however,
uses the terms interchangeably, without regard to their different meanings
or purposes, and, because their distinctions do not bear on our analysis of
the defendant’s claim on appeal, we need not address them separately.
7
The denial of summary judgment on the basis of res judicata or collateral
estoppel is a final judgment for purposes of appeal. Singhaviroj v. Board
of Education, 124 Conn. App. 228, 232, 4 A.3d 851 (2010).
8
In denying the defendant’s motion for summary judgment, the court
noted that the defendant had not pleaded his preclusion claims as special
defenses. The court nevertheless considered his preclusion claims because
the plaintiff had not objected to them on the basis that the defendant had
failed to plead them.
The defendant now claims on appeal that the court based its denial of
summary judgment in part on the fact that he had not raised his preclusion
claims by way of special defense, and argues that the court was therefore
bound to consider them at trial because it had required him to plead them
and he had done so. Because the court did not base its determination
on summary judgment on his failure to plead his preclusion claims, the
defendant’s argument in this regard is misplaced.
9
Although the defendant’s claim, at first blush, appears to raise the inter-
esting procedural issue of whether the rejection of the application of a
preclusion doctrine as a matter of law can then be relitigated at trial because
of the differing burdens and standards imposed by summary judgment and
a trial on the merits, the resolution of the claim before us does not require
an analysis of that issue.
10
The defendant also claims that the denial of his motion to stay, which
is governed by Practice Book § 61-11 (b), was unconstitutional. Pursuant
to Practice Book § 61-14, ‘‘[t]he sole remedy for any party desiring the court
to review an order concerning a stay of execution shall be by motion for
review under Section 66-6.’’ ‘‘Issues regarding a stay of execution cannot
be raised on direct appeal.’’ (Internal quotation marks omitted.) Housing
Authority v. Morales, 67 Conn. App. 139, 140, 786 A.2d 1134 (2001). This court
granted the defendant’s motion for review, but denied the relief requested
therein. We thus decline to address this claim now.