Rozbicki v. Gisselbrecht ( 2014 )

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ZBIGNIEW ROZBICKI v. EUGENE M.
GISSELBRECHT ET AL.
(AC 35744)
DiPentima, C. J., and Beach and Bishop, Js.
Argued March 14—officially released September 16, 2014
(Appeal from Superior Court, judicial district of
Litchfield, Roche, J. [summary judgment]; Danaher, J.
[motion for contempt, motion to disqualify].)
Zbigniew S. Rozbicki, self-represented, the appel-
lant (plaintiff).
Ruth Nadeau Dwyer, with whom was J. Michael
Sconyers, for the appellees (defendants).
Opinion
BEACH, J. The plaintiff, Zbigniew S. Rozbicki, the
original executor of the estate of Kathleen M. Gissel-
brecht, appeals from the judgment of the trial court
granting the motion for contempt of the defendant,
Eugene M. Gisselbrecht, individually and as the succes-
sor executor of the estate of Kathleen M. Gisselbrecht,
his sister.1 The plaintiff claims that the trial court erred
in (1) ruling on a motion for contempt at a time when
the court no longer had jurisdiction over the matter; (2)
finding him in contempt for violating an interlocutory
discovery order that had not been incorporated into
the judgment file; and (3) denying a motion to recuse
itself. We disagree, and affirm the judgment of the
trial court.
The following facts and procedural history, as
revealed by the record, are relevant to this appeal. In
2007, the plaintiff was the executor of the subject estate
under the will of Kathleen M. Gisselbrecht. Because of
certain conduct of the plaintiff, he was removed for
cause from the position of executor in June, 2009. In
March, 2010, the plaintiff brought this action against
the defendant, individually and in his capacity as the
successor executor. In his third revised complaint, the
plaintiff claimed that the defendant breached his fidu-
ciary duty as executor by depleting the assets of the
estate, leaving insufficient funds to pay to the plaintiff
his bequest under the will and his fiduciary fees. He
also sought attorney’s fees and costs. The defendant
filed an answer and special defenses claiming that the
plaintiff’s action was barred by the statute of limita-
tions, the doctrine of election of remedies, res judicata,
collateral estoppel, and the statute of frauds.
In August, 2011, the defendant filed a motion for a
protective order requesting that the court issue an order
preventing the self-represented plaintiff from continu-
ing his deposition of the defendant, which had begun
on July 19, 2011. He argued that the plaintiff was emo-
tionally involved in the matter, and was using the depo-
sition process to harass the defendant. The court denied
the motion, but added that the defendant could have
the deposition videotaped at his own expense, and that
the defendant could seek additional assistance from
the court, including the cost of the videotaping or any
other appropriate remedy, if the conduct complained
of was apparent in the videotape of the next deposition.
On December 5, 2011, the court, Danaher, J., after view-
ing the videotape at the request of the parties, issued
a decision regarding a motion for compliance filed by
the defendant, and found that the plaintiff’s continua-
tion of the deposition of the defendant was conducted
in a manner that served unreasonably to harass, embar-
rass, oppress, and annoy the defendant, and that there
would be no further deposition of the defendant. On
December 15, 2011, the defendant filed a motion
requesting the court to issue an order requiring the
plaintiff to reimburse him $675.32 for costs associated
with videotaping the plaintiff’s deposition of the defen-
dant. On January 3, 2012, the court granted the motion,
ordering the plaintiff to pay the costs for videotaping
the deposition in the amount of $675.32 within thirty
days. On January 23, 2012, the plaintiff filed a motion
to vacate the order, and the court denied the motion
two days later.
Meanwhile, in August, 2011, the defendant had filed
a motion for summary judgment on the ground that the
plaintiff’s claims were barred by the statute of limita-
tions, res judicata, collateral estoppel, and the statute
of frauds. On December 19, 2011, the court, Roche, J.,
granted the motion for summary judgment. The plaintiff
filed a motion to reargue or reconsider the judgment
on January 9, 2012; the motion was denied on January
11, 2012. The plaintiff filed a motion for extension of
time in which to appeal on January 23, 2012, which
was granted.
On February 15, 2012, the plaintiff filed an appeal
from the trial court’s summary judgment. The plaintiff
included as an issue in that appeal the January 3, 2012
order of payment. We dismissed the appeal on April
24, 2012. On October 10, 2012, our Supreme Court
denied the plaintiff’s petition for certification to appeal.
Rozbicki v. Gisselbrecht, 307 Conn. 917, 54 A.3d 181(2012).
On January 16, 2013, the defendant filed a proposed
judgment file, which included the court’s granting of
his motion for summary judgment and the January 3,
2012 order to pay the cost of videotaping the deposition.
On February 6, 2013, the court, Trombley, J., deter-
mined that a judgment file was not necessary because
a valid and binding order of Judge Danaher was issued
on January 3, 2012, which ‘‘remains in effect ordering
the plaintiff, an officer of this court, to pay to the defen-
dant the sum of $675.32.’’ The plaintiff filed an objection
to that ruling, seeking its vacation, on February 27, 2013,
which was overruled by the court on March 11, 2013.
On March 8, 2013, the defendant filed a motion for
contempt, claiming that the plaintiff had not complied
with the court’s January 3, 2012 order to pay the video-
taping fee of $675.32 within the allotted time, and sought
as damages the $675.32 in costs plus $2500 in attorney’s
fees. On May 9, 2013, the plaintiff filed a motion to
dismiss the defendant’s motion for contempt, arguing
that the court lacked personal and subject matter juris-
diction to rule on the motion for contempt after sum-
mary judgment was rendered, on December 19, 2011.
The court denied the plaintiff’s motion to dismiss, and
on May 30, 2013, the court, Danaher, J., issued a memo-
randum of decision regarding the defendant’s motion
for contempt, in which it found that the plaintiff was
in wilful contempt of the court’s clear and unambiguous
order to pay to the defendant $675.32 within thirty days.
The court ordered the plaintiff to pay $675.32 to the
defendant’s counsel within two weeks.
On May 28, 2013, the day on which the motion for
contempt was argued on the short calendar, the plaintiff
filed a motion for disqualification of Judge Danaher,
which was denied. This appeal followed.
I
We first address the plaintiff’s claims regarding the
jurisdiction of the trial court to act on various motions.
Although the plaintiff divides his argument into two
issues, the claims are somewhat related, in that all
involve the timing of the various rulings regarding the
costs of videotaping against the backdrop of the court’s
rulings on the merits of the case and the appeal process
on the merits. We have considered all of the plaintiff’s
claims, but organize their discussion somewhat dif-
ferently.
Our review of the jurisdictional issues is plenary. ‘‘We
have long held that because [a] determination regarding
a trial court’s subject matter jurisdiction is a question
of law, our review is plenary. . . . Subject matter juris-
diction involves the authority of the court to adjudicate
the type of controversy presented by the action before
it. . . . [A] court lacks discretion to consider the merits
of a case over which it is without jurisdiction . . . . ’’
(Internal quotation marks omitted.) Ferguson Mechani-
cal Co. v. Dept. of Public Works, 282 Conn. 764, 770–71,
924 A.2d 846 (2007).
A
The plaintiff claims that the trial court lacked jurisdic-
tion to rule on the motion for contempt, which was
filed approximately eleven months after the appeal on
the merits of the summary judgment was dismissed.
We agree that the trial court lacked jurisdiction to find
the plaintiff in contempt unless the contempt order was
an exercise of the trial court’s inherent jurisdiction to
enforce its orders. We assume, for the purpose of this
subpart of the opinion, that the January 3, 2012 ruling
of the court ordering the payment of the videotaping
costs was valid, and that the court had the authority
to make the order at the time it was made.2
The Superior Court has the inherent authority to
enforce its orders. See AvalonBay Communities, Inc.
v. Plan & Zoning Commission, 260 Conn. 232, 246, 796
A.2d 1164 (2002); see also Bauer v. Bauer, 308 Conn.
124, 130, 60 A.3d 950 (2013). ‘‘[E]ven in the absence of
a finding of contempt, the trial court has broad discre-
tion to make whole any party who has suffered as a
result of another party’s failure to comply with a court
order.’’ (Internal quotation marks omitted.) AvalonBay
Communities, Inc. v. Plan & Zoning Commission,
supra, 243.
Although ordinarily our trial courts lack jurisdiction
to act in a case after the passage of four months from
the date of judgment; see General Statutes § 52-212a;
there are exceptions. One exception arises when the
exercise of jurisdiction is necessary to effectuate prior
judgments or otherwise enforceable orders. Our
Supreme Court has explained the continuing jurisdic-
tion exception to § 52-212a as follows: ‘‘We reject [a]
hypertechnical understanding of the trial court’s contin-
uing jurisdiction to effectuate prior judgments. We con-
clude, instead, that the trial court’s continuing
jurisdiction is not separate from, but, rather, derives
from, its equitable authority to vindicate judgments.
. . . Moreover, we hold that such equitable authority
. . . [derives] from its inherent powers.’’ (Emphasis
omitted; footnote omitted.) AvalonBay Communities,
Inc. v. Plan & Zoning Commission, supra, 260 Conn.
243. ‘‘[T]he trial court’s continuing jurisdiction to effec-
tuate its prior judgments, either by summarily ordering
compliance with a clear judgment or by interpreting an
ambiguous judgment and entering orders to effectuate
the judgment as interpreted, is grounded in its inherent
powers, and is not limited to cases wherein the non-
compliant party is in contempt, family cases, cases
involving injunctions, or cases wherein the parties have
agreed to continuing jurisdiction.’’ Id., 246 (continuing
jurisdiction existed in case where trial court ordered
planning and zoning commission to impose only reason-
able and necessary conditions on approval of appli-
cant’s affordable housing application); see also Papa
v. New Haven Federation of Teachers, 186 Conn. 725,
737, 444 A.2d 196 (1982) (recognizing ‘‘the inherent
power of the court to coerce compliance with its
orders’’); Wells Fargo Bank, N.A. v. Melahn, 148 Conn.
App. 1, 85 A.3d 1 (2014) (continuing jurisdiction existed
where as part of judgment of strict foreclosure bank
was required to send notice to nonappearing defendants
before filing certificate of foreclosure and bank falsely
certificated to court that notice requirement had been
satisfied). ‘‘In a contempt proceeding, even in the
absence of a finding of contempt, a trial court has broad
discretion to make whole a party who has suffered as
a result of another party’s failure to comply with the
court order.’’ (Emphasis omitted; internal quotation
marks omitted.) Clement v. Clement, 34 Conn. App. 641,
647, 643 A.2d 874 (1994).
The trial court in the present case had ordered the
plaintiff to pay videotaping costs to the defendant. The
plaintiff had never complied with the order. The passage
of time itself did not serve to deprive the court of juris-
diction to enforce its order.
The plaintiff, however, has raised several related chal-
lenges to the court’s exercise of jurisdiction; these may
be addressed more summarily. One is that the court
lost jurisdiction by virtue of General Statutes § 51-183b,
which provides in relevant part that ‘‘[a]ny judge of
the Superior Court . . . who has the power to render
judgment, who has commenced the trial of any civil
cause, shall have power to continue such trial and shall
render judgment not later than one hundred and twenty
days from the completion date of the trial of such civil
cause. . . .’’ (Emphasis added.) The court heard the
motion on May 28, 2013, and granted it on May 30, 2013,
two days later. The primary purpose of § 51-183b is to
compel timely completion of matters in the trial court;
see, e.g., Building Supply Corp. v. Lawrence Brunoli,
Inc., 40 Conn. App. 89. 96–97, 669 A.2d 620, cert. denied,
236 Conn. 929, 674 A.2d 1326 (1996); and the trial court
in the present case could hardly have acted more effi-
ciently. The effort to peg the starting point of the 120
day period to the judgment on the merits, or perhaps
to the argument on the motion for summary judgment,
is entirely inconsistent with the concept of continuing
jurisdiction to enforce judgments and orders.
An additional argument raised by the plaintiff is that
the court’s order to pay the costs of videotaping was
not specifically included in the judgment file, and, there-
fore, was not part of the judgment that the court had
continuing jurisdiction to enforce. This contention fails
for at least two reasons: the judgment file is ministerial;
see, e.g., Wesley v. Schaller Subaru, Inc., 277 Conn. 526,
529 n.1, 893 A.2d 389 (2006); and the contempt order
related to an independent order of the court, issued
shortly after judgment, in any event.
B
Part I A of this opinion is predicated on the assump-
tion that the January 3, 2012 order was issued within
the jurisdiction of the trial court. The plaintiff claims
that the court did not have jurisdiction to issue the
order. He contends that the order was an interlocutory
discovery order, which ordinarily would be subsumed
in the judgment, rather than an independent judicial
order, and that it was issued after judgment was ren-
dered on the merits, so that it was not properly sub-
sumed in the judgment in any event. In the unusual
circumstances of this case, we disagree.
The timing in this case was complicated by the paral-
lel short calendar scheduling of the motions regarding
payment for discovery costs and the motion for sum-
mary judgment. Significantly, the motions regarding the
order of the payment of the videotaping costs no longer
directly concerned the preparation of evidence for trial,
but, rather, involved the payment of costs. Ordinarily,
orders regarding what may be discoverable, the sched-
uling of discovery, and related matters do conclude
with the judgment, and ordinarily such orders are not
immediately appealable, but, rather, may be raised as
issues on appeal.3 The order for payment, however, was
not an order directing the progress of discovery toward
trial, but, rather, was an independent order to effectuate
the authority of the court. In the unusual circumstances
of this case, the order properly served as the predicate
for the order of contempt.4
The facts of this case are analogous to those of CFM
of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 400–
404, 685 A.2d 1108 (1996), overruled in part on other
grounds by State v. Salmon, 250 Conn. 147, 154–55,
735 A.2d 333 (1999). There, the plaintiff’s attorney was
ordered to pay $10,000 to the defendant as sanctions
for bad faith behavior. Our Supreme Court held that
the sanction was a final judgment for the purpose of
appeal because the order was not dependent on further
proceedings and the amount would be owed irrespec-
tive of the eventual outcome of the case; the rights
affected were solely between the attorney and the
defendant.5 See also Bryant v. Bryant, 228 Conn. 630,
636, 637 A.2d 1111 (1994).
The second subsidiary issue is whether, in the circum-
stances of this case, the court had the authority to rule
on the defendant’s motion for order after its granting
of the defendant’s motion for summary judgment. At
the time the court granted the motion for summary
judgment on December 19, 2011, the defendant’s motion
for order, which had been filed on December 15, 2011,
was pending. Less than two weeks after granting the
motion for summary judgment on December 19, 2011,
the court ruled on the defendant’s pending motion for
order on January 3, 2012.
At the time of the court’s January 3, 2012 ruling on
the motion for order, the trial court was fully engaged
in managing the case, and no appeal had yet been filed.
As noted previously, motions for reargument of trial
court rulings and decisions were pending. On January
23, 2012, the plaintiff filed a motion for an extension
of time to file an appeal on the ground that the trial
court had yet to rule ‘‘on discovery motions which shall
be included in the issues on appeal.’’ The motion was
granted, and the plaintiff included on appeal issues
regarding the court’s ruling on the motion for order
of payment.
Ordinarily, the trial court has jurisdiction to entertain
motions until the expiration of four months from the
date of judgment. Kim v. Magnotta, 249 Conn. 94, 107,
733 A.2d 80 (1999); see also Rocque v. Light Sources,
Inc., 275 Conn. 420, 432–33, 881 A.2d 230 (2005). Espe-
cially in light of the practical circumstances in this case,
we see no reason why the court did not have the author-
ity to rule on outstanding motions. The order that
formed the predicate for the contempt order, then, was
properly granted by the trial court.
II
The plaintiff claims that the court, Danaher, J.,
improperly denied his motion for judicial disqualifica-
tion on the ground of bias. We disagree.
‘‘In reviewing a claim of judicial bias, this court
employs a plain error standard of review. . . . The
standard to be employed is an objective one, not the
judge’s subjective view as to whether he or she can be
fair and impartial in hearing the case. . . . Any conduct
that would lead a reasonable [person] knowing all the
circumstances to the conclusion that the judge’s impar-
tiality might reasonably be questioned is a basis for
the judge’s disqualification.’’ (Citation omitted; internal
quotation marks omitted.) Statewide Grievance Com-
mittee v. Burton, 299 Conn. 405, 416, 10 A.3d 507 (2011);
see also Code of Judicial Conduct, Rule 2.11 (a).
The plaintiff claims that the court improperly denied
his May 28, 2013 motion for judicial disqualification.
He essentially argues that the court improperly failed
to refer the motion to another judge and improperly
denied the motion when the court exhibited bias toward
him, as evidenced by the court’s adverse rulings. He also
claims that the court called him ‘‘a liar.’’ We disagree.
A hearing before another judge was not required in
this case. In order to require an evidentiary hearing
before another judge on a motion for disqualification,
the party asserting bias of the trial judge must ‘‘state
facts on the record which, if true, give fair support to
his claim. If those facts, taken as true, give that fair
support, the party is entitled to an evidentiary hearing
on those facts before another judge.’’ Szypula v. Szy-
pula, 2 Conn. App. 650, 656, 482 A.2d 85 (1984). The
facts alleged in this case, however, do not give fair
support to the claim of judicial bias.
The plaintiff’s claim of judicial bias was based essen-
tially on claims that Judge Danaher had exhibited bias
by issuing rulings adverse to him. ‘‘It is axiomatic, how-
ever, that an adverse or unfavorable ruling is not, in
itself, evidence of judicial bias against a litigant.’’
Traystman v. Traystman, 141 Conn. App. 789, 803, 62
A.3d 1149 (2013). The plaintiff also asserts that the court
exhibited bias by calling him a liar ‘‘in a deposition
controversy in a companion case.’’ There is nothing in
the record before us showing that Judge Danaher called
the plaintiff a liar. In his appellate brief, the plaintiff
has cited transcript excerpts in which Judge Danaher
stated that he believed that a claim made by the plaintiff,
to the effect that the court had not read a document
prepared by the plaintiff, was false. Characterizing a
claim as false is different from calling someone a liar.
We have thoroughly reviewed the materials presented
and conclude that, although relations may have been
strained; compare Traystman v. Traystman, supra,
803; Judge Danaher did not act improperly in denying
the plaintiff’s motion for judicial disqualification.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We refer to Eugene M. Gisselbrecht in both capacities as the defendant.
2
The issue whether the court had the jurisdiction to make the order on
January 3, 2012, will be discussed in the following subpart of this opinion.
3
The plaintiff correctly asserts that most discovery orders are interlocu-
tory and not immediately appealable. The issuance of a contempt order may
alter the situation. See Green Rock Ridge, Inc. v. Kobernat, 250 Conn. 488,
498, 736 A.2d 851 (1999). Here, we are not directly concerned with the
question of whether the order for payment was independently appealable,
because the appeal has been taken from the subsequent order of contempt.
4
The analysis is complicated by the fact that the self-represented party
was also an attorney. Ordinarily, findings of contempt where nonparties are
involved are reviewed by means of writs of error.
5
Similar to the present case, the sanctions order was deemed to be equiva-
lent to a judgment, and the case was remanded to the trial court for further
proceedings on a contempt action. CFM of Connecticut, Inc. v. Chowdhury,
supra, 239 Conn. 404.