# Opposition Brief — Simmons v. Frankel

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2444%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 813

## Text

No. 92-1762

In The FICE OF THE CLERK

Supreme Court of the United States

October Term, 1992
*

AUGUSTUS J. SIMMONS,
Petitioner,

V.

EMIL H. FRANKEL, et al.,
Respondents.

.

Petition For A Writ Of Certiorari To The
United States Court Of Appeals
For The Second Circuit .
e

BRIEF FOR RESPONDENTS EMIL H. FRANKEL,
COMMISSIONER OF TRANSPORTATION AND
RICHARD BLUMENTHAL, ATTORNEY GENERAL
IN OPPOSITION TO PETITION
¢

RICHARD BLUMENTHAL
Attorney General
State of Connecticut

KENNETH N. TEDFORD
Assistant Attorney General
State of Connecticut
55 Elm Street
Hartford, CT 06106
(203) 566-2257

) (Counsel of Record)

ARNOLD K. SHIMELMAN
Assistant Attorney General
State of Connecticut

251 Maxim Road
Hartford, CT 06114

(203) 566-2298

Attorneys for Respondents

eth

Eee ee eae ee eae ee

QUESTION PRESENTED

Should petitioner’s cause be reviewed by this Court?

ii

TABLE OF CONTENTS

Page
CRIMP EMIEG TOR UEED 60055 vi nccrescsssanceeeean i
pp oe Ge wiley, ty) rere ee iii
DUPLR EES GOW EUG GNU cic iscawavetesancaueee 1
REASONS FOR DENIAL OF THE PETITION....... 5
PPNEE (5 in. 8 ceewi bay nce EK 5
PONENTS x 05 a000 ea 05s eau bees Vee 7

APPENDIX

ili

TABLE OF AUTHORITIES

Page
Cases:
Connecticut Pharmaceutical Association v. Milano,
191 Conn. 555, 468 A.2d 1230 (1983)............... 6
Gagne v. Norton, 189 Conn. 29, 453 A.2d 1162
ERR CG EC sve nas nsesceccscsccccccccccese 6
Migra v. Warren City School District Board of Educa-
tion, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed. 2d 56
EE IIe 6
Rooker v. Fidelity Trust Co., 261 U.S. 114, 43 S.Ct.
I EOE occ c cece ese cee 5, 6
Simmons v. Wetherall, 180 Conn. 587, 430 A.2d 1296
eee sa chs se nscscccccccccessccsc 2, 6

FEDERAL STATUTE:
SE 5, 6

eke Star lla aaa

No. 92-1762
¢

In The

Supreme Court of the United States

October Term, 1992
*

AUGUSTUS J. SIMMONS,
Petitioner,

V.

EMIL H. FRANKEL, et al.,
Respondents.

.

Petition For A Writ Of Certiorari To The
United States Court Of Appeals
For The Second Circuit
¢

BRIEF FOR RESPONDENTS EMIL H. FRANKEL,
COMMISSIONER OF TRANSPORTATION AND
RICHARD BLUMENTHAL, ATTORNEY GENERAL
IN OPPOSITION TO PETITION
4

The respondents, Emil H. Frankel, Commissioner of
Transportation and Richard Blumenthal, Attorney Gen-
eral, pray that a writ of certiorari, as requested by the
petitioner, not be issued to review the judgment of the
United States Court of Appeals for the Second Circuit,
rendered on February 23, 1993.

¢

STATEMENT OF THE CASE

Since the early 1960’s, the petitioner has been in
almost constant litigation with the State of Connecticut

1

and other defendants regarding his alleged ownership of
three (3) parcels of land located along route #20 in the
Town of East Granby, Connecticut, which parcels are part
of the State-owned Bradley International Airport.

In 1980, the Connecticut Supreme Court finally put to
rest the prior 20 years of litigation by affirming two
Superior Court judgments, clearly and absolutely vesting
title to the parcels in question with the State of Connecti- :
cut (Simmons v. Wetherall, 180 Conn. 587, 430 A.2d 1296
(1980).

Mr. Simmons has not accepted this final appellate
court decision, and to this date, has initiated seven (7)
State Superior Court actions and, including this case, five
(5) District Court of Connecticut matters against the State
and others all seeking to reverse the 1980 Connecticut
Supreme Court decision and the trial court judgments.
Mr. Simmons has not prevailed in any of these matters.
The chart set forth in the Appendix summarizes the post
1978 litigation initiated by Mr. Simmons. App. A-1.

In 1987, the United States of America filed a petition
for removal of a Superior Court action to the District
Court of Connecticut. That case is captioned Augustus ].
Simmons v. William Burns, et al. Civil No. H-87-732 (JAC)
D.Conn. The state defendants filed a motion to dismiss
the action. The Court granted the State’s motion (Ruling
On Motion To Dismiss, November 10, 1987) (App. A-5).
Mr. Simmons filed a motion to set aside the dismissal,
and the Court (Cabranes, J.) on March 15, 1988 ruled on
this and a number of other pending motions filed by the
plaintiff and the other defendants, which Ruling and
Order sustained the dismissal and also enjoined (sua

sponte) Mr. Simmons from further District Court litigation
regarding his former ownership of the three parcels of
land. (See Ruling On Pending Motions And Orders App.
A-7.)

This Order, including the injunction, was affirmed by
the United States Court of Appeals for the Second Circuit
(Simmons v. Burns. et al., Docket No. 88-6093 (2d Cir., Oct.
5, 1988 unreported) (App. A-26) and this Supreme Court
denied a petition for a writ of certiorari in Simmons v.
Burns, et al., No. 88-693, Nov. 28, 1988. App. A-29.

Notwithstanding the above cited District Court and
Court of Appeals Rulings and Orders enjoining him, the
petitioner in 1992 initiated a Connecticut District Court
action which the District Court dismissed, sua sponte,
(Simmons v. Frankel, et al., No. 292 CV00395(PCD), July
1992). PApp. at App. 8a-10a.!

The United States Court of Appeals for the Second
Circuit affirmed the District Court dismissal and the
imposition of sanctions against the petitioner (Simmons v.
Frankel, et al., No. 92-6208, Feb. 23, 1993). (P.App. at App.
la-7a). The Court Order states in part as follows:

Not dissuaded by the final judgment granting
title of the disputed real property to the State of
Connecticut, Simmons continued to pursue the
issue. Simmons filed seven state and five federal
proceedings after the 1978 stipulation was certi-
fied. Then in a 1988 order, Judge Cabranes
enjoined Simmons from filing “any state or fed-
eral claims in any federal court against any of

1 The Appendix to the petition is designated “P.App. at
App. __.”

the defendants named in the complaint in this
lawsuit if such lawsuit related to his alleged
ownership” of the disputed real: property.
Affirming Judge Cabranes’s order in all
respects, this Court warned that any violation of
that injunction could be punished as contempt
of court and imposed double court costs against
Simmons. Simmons v. Burns, No. 88-6093 (2d Cir.
Oct. 5, 1988) (unpublished summary order).

Despite this Court’s attempt to stem the flow of
vexatious litigation by Simmons, we are con-
fronted once again with an attempt by him to
litigate a matter barred by res judicata. Notwith-
standing Simmons’s attempt to circumvent the
injunction by changing the named defendants,
the instant complaint clearly relates to Sim-
mons’s ownership of the East Granby land.
Thus, Simmons has violated Judge Cabranes’s
injunction. Furthermore, even without the
injunction, Judge Dorsey’s dismissal of the com-
plaint sua sponte would be affirmed based on res
judicata grounds. P.App. at App. 3a-4a.

The petitioner has now filed the instant Petition for :
Writ of Certiorari. The issues raised in this litigation are, |
in essence, the same that petitioner has repeatedly raised
in the many prior actions instituted by the petitioner and
which have been conclusively resolved against him. The
petitioner now asks this Supreme Court to consider them
yet again. Clearly, under Rule 10 of the Rules of the
Supreme Court of the United States, the considerations
governing review on the writ of certiorari establish
beyond doubt that petitioner’s cause does not warrant
review.

REASONS FOR DENIAL OF THE PETITION

The respondents respectfully represent that there are
no special or important reasons to support the Petition.
The United States Court of Appeals for the Second Circuit
has not rendered a decision in conflict with the decision
of another United States court of appeals on the same
matter; has not decided a federal question in conflict with
the Connecticut Supreme Court; nor has the Appeals
Court so far departed from the accepted and usual course
of judicial proceedings as to call for the exercise of this
Supreme Court’s power of supervision. Further, the
Appeals Court decision is not in conflict with decisions of
this Court. (See Rule 10 of the Rules of the Supreme Court
of the United States.)

ARGUMENT

The decision of the District Court dismissing the
complaint and imposing sanctions against the petitioner
and the summary order of the Court of Appeals for the
Second Circuit affirming the District Court order were
both appropriate, proper and in accord with the doctrine
of res judicata, the doctrine of Rooker v. Fidelity Trust Co.,
261 U.S. 114, 43 S.Ct. 288, 66 L.Ed. 396 (1923), and the
prohibition of using the federal courts to collaterally
attack state court judgments as set forth in 28 U.S.C. Sec.
1738. |

Further, the petitioner by initiating this most current
litigation has clearly, directly, intentionally and without
justification violated the valid and outstanding 1988
Order of the District Court (Cabranes, J.) prohibiting and

enjoining him from litigating these same issues. (See Rul-
ing on Pending Motions and Order Simmons v. Burns, et
al., App. A-21-23.)

In a civil rights suit under 42 U.S.C. Sec. 1983, enti-
tled Migra v. Warren City School District Board of Education,
465 U.S. 75, 104 S.Ct. 892, 79 L.Ed. 2d 56 (1984), this
Supreme Court, at page 896, stated as follows regarding
res judicata and the federal full faith and credit statute 28
U.S.C. Sec. 1738:

It is now settled that a federal court must give to
a state-court judgment the same preclusive
effect as would be given that judgment under
the law of the state in which the judgment was
rendered.

In Connecticut, a valid judgment entered by agree-
ment or consent is conclusive to the same extent as a
valid judgment rendered after adjudication on the merits.
See Connecticut Pharmaceutical Association v. Milano, 191
Conn. 555, 558 (1983); Gagne v. Norton, 189 Conn. 29, 34
(1982). The Connecticut Supreme Court in Simmons v.
Wetherall, 180 Conn. 587, 430 A.2d 1296 (1980), affirmed
the lower court judgments whereby title of the disputed
land vested in the State of Connecticut. In the instant
action, petitioner has once again asserted claims which
rest upon his alleged ownership of the same three par-
cels.

In Rooker, supra this Supreme Court set forth the
proposition that the federal courts are not to be used as
appeal courts from state court decisions. Therefore, the

petitioner cannot litigate the same issues before the fed-
eral courts that were conclusively decided by the Con-
necticut Supreme Court in 1980.

¢

CONCLUSION

Based upon the foregoing, it is clear that the peti-
tioner has not established any basis upon which this
Court, in its discretion, should grant review. Accordingly,
it is respectfully urged that the petition be denied.

Respectfully submitted,

RICHARD BLUMENTHAL
Attorney General
State of Connecticut

KENNETH N. TEDFORD
Assistant Attorney General
State of Connecticut

55 Elm Street

Hartford, CT 06106

(203) 566-2257

(Counsel of Record)

ARNOLD K. SHIMELMAN
Assistant Attorney General
State of Connecticut

251 Maxim Road

Hartford, CT 06114

(203) 566-2298

Attorneys for Respondents

APPENDIX

A-i
INDEX TO APPENDIX

Re Me IN nia Sones ctinw heh vaduucevcscvices A-1

Simmons v. Burns, et al

U.S. District Court Docket No. H-87-732 Ruling on
Motion to Dismiss (Dorsey, J.) November 10,
WOR NSN ANAS aA GEN ek Mah vi sn UnUSLey [07

NOD sweidns juno
$3}P}1S payiup awiaidns

(Mojaq
(OVNZEL-Z8-H ag -
WNOD WIWISIG ‘SQ 0}
PeAOUIal) PassIusig

£861 *3ny
SS8PEE0-Z8-AD

Peulllyjy § passiwsip 9g6] ‘uel
(9861)z08 ‘ddy ‘uuo> 6 LSSTZLE-98-AD

PESSIWISIP P86I “Gej
jaljay Asoyerepsaq

powllysyy 10} UOTJOW
(S861)7Z9 ‘ddy uuod ¢ SL8€91-0Z-AD
}4N07) }1n07)
a}eijaddy Jomadns

‘SONIGHIIDONd LUNOD ALVLS

(0861) 967 PZ'V O€F Z8S ‘NNOD O81 TTZYAHLIM ‘A SNOWWIS NI GAWUIAAV
LNINSGN TWLNAWaTIddNS GNV LNAWOAN 8Z61 LSOd
SNOWNWIS f SALSNONV Ad GALVILINI SASV>D

A-2

L661 ‘Z 390 petuep
‘49D ZO81-06

}NOD aswaidns
S3}2}S paylup

polueq
‘ID “Jeg
(7661)906
‘UUO> 777

patuep
‘WID ‘jeg
(1661) 106
‘UUO>D BIZ

yano0>
awaidns

7661 ‘€ [dy
pasodwy suonysuesg ‘7
passtusiq jeaddy -|

(payzodaiun) siapio

8160I ‘D'V

pawiyyy
(L661) 108 ‘ddy ‘uuo> #z

y4n0>
ajejjaddy

7661 ABW
pasodulr suorsues

Passtusig
1661 Jequiadaq
S88€S0S0-76-AD

166L Jequiadaq
peurejysns uordalqo
petued

salajay 0}

[el1ajay JO uoTO;
SZ8E91-0Z-AD
SUOT}IURS [TT "39S ‘Gd

PassIWsIp O661 Ae
8€0102Z-06-AD

Passtusip 6g6 A[n{
E€1E00L-68-AD

yan07
Jouadns

A-3

P86 ‘1 “90
patuap ‘jaz
€€8l-€8

VINOD sulaidns
S3}2}S payuyp

suoljues ainjynj jo adtjou

pouyyy Passtwsigq
(S861) Z809-S8 C86l
(afW) S-S8-H

paunyyy €861 ‘OI ‘8ny
(€861) ZS79-€8 PessiulsIp-pajepl[osuo7
( €861

(DAL) $%Z-€8-H

1861
(Ovf) 82Z-18-H

~

JINIIID Puodag ay} 1Oj INIII9UUOD JO 4D1}SIG
sjeaddy jo ysno> JINOD 3d1I}SIG
$3}R}S payuy $a}e1S payup

‘SONIGAIIIONd LUNOD TIwuaags

I]

A-4

Sulpuag
T9OLI-76

8861 “8% AON
patuap "a>
€69-88

JANOD sWIaIdNs
S3}e}S payuy

pesodult suo ues

pawiyyy
(€661) 8079-76

pasodu suo dues

poullyjy
(8861) €609-88

JINIIID PUOIIS Vy} JOj
sjeaddy jo yanoy
S3}P1S payup

pasodul suorsues
Passtulsig,
7661 aun{
(9d)S6€00 AD 762

suonjoe nod
JL}SIP [elapay JayjaNy
woij pautofua yyrquteyd
passtusiq
L861
(Ovf) %€2-28-H

JNDIWD9UUO?) JO 3DII}SIG
JANOD JYSIG
S3}e1S peu

A-5
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
AUGUSTUS J. SIMMONS

— * Civil No. H-87-732
J. WILLIAM BURNS, et al. : (PCD)

RULING ON MOTION TO DISMISS

Plaintiff commenced this action in state court on
August 10, 1987. The action was removed to this court on
the petition of the defendant Administrator of the Federal
Aviation Administration. Defendants Julian Tashjian, Sec-
retary of the State of Connecticut, and William Burns,
Commissioner of the Connecticut Department of Trans-
portation, move to dismiss the action as to them.

Plaintiff's complaint against the state defendants
essentially seeks to quiet title to certain parcels of land
and to eject the State of Connecticut from possession of
that land. The complaint is only the latest in a iong line of
state and federal actions which plaintiff has filed relating
to the same subject. However, these issues were validly
and finally adjudicated in Simmons v. Wetherall, No.
163875 (Superior Court January 4, 1978, as modified June
2, 1978). The judgment entered in that case was affirmed
on appeal by the Connecticut Supreme Court. Simmons v.
Wetherall, 180 Conn. 587 (1980). Plaintiff is bound by that
judgment through the doctrine of res judicata. Moreover,
his complaint is impermissible either as an attempt to
appeal to this court from the state court judgment, Rooker
v. Fidelity Trust Co., 261 U.S. 114 (1923), or to collaterally
attack that judgment.

A-6

For the foregoing reasons, the motion of the state
defendants to dismiss the complaint is granted.

SO ORDERED.

Dated at Hartford, Connecticut, this 10th day of
November, 1987.

/s/ Peter C. Dorsey

Peter C. Dorsey
United States District Judge

A-7

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

AUGUSTUS J. SIMMONS :
v.
WILLIAM BURNS, et al.

CIVIL NO. H-87-732(JAC)

RULING ON PENDING MOTIONS
AND ORDER

(Filed March 15, 1988)

This represents the latest, and this court hopes, the
final chapter in the epic tale of one pru se plaintiff's
passion for engaging in vexatious litigation. Plaintiff
Augustus Simmons has struggled for over twenty-four
years to control several parcels of land situated in the
Town of East Granby, parcels which long ago became part
of Bradley Interational [sic] Airport. The instant action
seeks, inter alia, declaratory and injunctive relief and
damages against various state and federal defendants, all
of which claims rest upon plaintiff’s reassertion of his
lawful ownership of these parcels. Insofar as is relevant
to the pending motions, plaintiff also asserts various
complaints against two attorneys who represented him at
an earlier stage in this struggle. Presently pending is an
assortment of motions filed by plaintiff of varying
degrees of intelligbility [sic] and importance. Because the
determinations on the merits of Plaintiff’s Motion to Set
Aside Dismissal of State Defendants (filed Dec. 1, 1987)
(“Motion to Set Aside Dismissal”), the Federal Defen-
dant’s Motion to Dismiss (filed Nov. 30, 1987) and Defen-
dant Rogin and Hirtle’s Motion for Summary Judgment
(filed Jan. 6, 1988) are dispositive of the claims against

A-8

these defendants, these are the only motions which the
court will discuss at any length.

For the reasons set forth below, the complaints
against the state and federal defendants, are DISMISSED
WITH PREJUDICE; summary judgment is GRANTED for
defendants Rogin and Hirtle.

BACKGROUND

It is difficult to summarize the tortuous path of this
litigation. We rehearse this history here because the repet-
itiveness of it is in large part the ground for our decision.
Fully fifteen years ago, our Court of Appeals described
the beginnings of the story as follows:

The battle began [in 1964] when the state
aeronautics commission moved under Conn.
Gen. Stat. § 15-79, which then governed taking
of land for airports, to condemn the Simmons
property [adjoining Bradley International Air-
port}. Pursuant to the statute, a petition for the
determination of compensation was brought by
the state in Hartford Superior Court; a judgment
was rendered finding the taking reasonable and
appointing a referee to assess damages.
Anastasia Simmons [plaintiff's mother]
appealed to the Connecticut Supreme Court,
which reversed, finding error in the trial court’s
exclusion of evidence offered to show that prop-
erty similarly situated had not been taken. State
v. Simmons, 153 Conn. 351, 216 A.2d 632 (1966).
Since this evidence was held to be relevant on
the issue of whether the state had acted arbi-
trarily in singling out the Simmons land, the
case was remanded for a new trial.

A-9

While the first suit was pending, Mrs. Sim-
mons died, and Augustus entered the fray.
Before the second trial began, he raised as an
affirmative defense to the taking the fact that
the state authorities had not received the requi-
site statutory approval from the Town of East
a before proceeding with the condemna-
tion. The trial court agreed; the Supreme Court
affirmed. State v. Simmons, 155 Conn. 502, 234
A.2d 835 (1967). Round two for the Simmons
family.

Undaunted, the state tried again, this time
attempting to use Conn. Gen. Stat. § 48-12, the
general condemnation statute, which provided
for procedures different from section 15-79 in
cases where compensation could not be agreed
upon by the parties. The Simmons family pre-
vailed again, in Simmons v. State, 160 Conn. 492,
280 A.2d 351 (1971), when the Supreme Court
held that the state was required to use the sec-
tion 15-79 procedure.

At about the same time the abortive con-
demnation attempts were taking place, a related
dispute arose between the state and Simmons
over some land upon which runway lights had
been —— Simmons claimed that the land was
his; the state said it was the state’s. An eject-
ment action followed. In Simmons v. Parizek, 158
Conn. 304, 259 A.2d 642 (1969), the Supreme
Court held that since the complaint did not
allege that the state officials had acted uncon-
stitutionally or in a manner unauthorized by
some statute, the suit was barred by the doctrine
of sovereign immunity. Appellant took the hint,
and on October 14, 1969 resurrected the eject-
ment action, this time alleging that the taking of
the land and the erection of runway lights was
done both unconstitutionally and without statu-
tory authorization. That suit, Docket No. 162923,

A-10

Hartford Superior Court, [was] still pending [as
of January, 1973).

Shortly before the Connecticut Superior
Court decision in Simmons v. Parizek, supra, a
Special Act was passed by the Connecticut Gen-
eral Assembly, allowing Augustus Simmons to
sue the state for damages over “loss of use of
land,” arising out of the bumbling condemna-
tion proceedings. On January 5, 1970, Simmons
brought such a suit, Docket No. 163875, Hart-
ford Superior Court; [as of January, 1973,] the
action [was] still pending.

Thus, if there ever was a litigant who knew
that his claims would be fairly heard in the state
courts, Augustus Simmons was he. Neverthe-
less, perhaps for a change of setting, he insti-
tuted [a] section 1983 action on December 22,
1971 [in the United States District Court for the
District of Connecticut, Simmons v. Wetherall,
Civil No. 14806] alleging that his property was
taken without due compensation, and seeking
damages.

Simmons v. Wetherall, 472 F.2d 509, 510-11 (2d Cir.), cert.
denied, 412 U.S. 940 (1973); see also Simmons v. McKone, 158
Conn. 71 (1969) (lawsuit concerning plaintiff’s succession
to the land).

Judge Blumenfeld dismissed the section 1983 action
after finding that, at most, Simmons had alleged a tor-
tious interference with his property by state officials.
Upon review of Judge Blumenfeld’s decision, our Court
of Appeals determined that Simmons’ claim also involved
a boundary dispute; accordingly, it affirmed in part and
remanded in part so that the district court could stay the
action pending resolution of one of two state court pro-
ceedings. See Simmons v. Wetherall, 472 F.2d at 511-12.

A-11

In December, 1977, the plaintiff retained the firm of
Rogin, Nassau, Caplan, Lassman & Hirtle to represent
him in his then-pending cases. Attorneys Edward Rogin
and Robert Hirtle, two defendants in the instant action,
were partners in that firm. Negotiations ensued, and
Docket No. 163875 was consolidated with Docket No.
162923 and three other related actions that Simmons had
pending in the Connecticut Superior Court. On December
13, 1977, state referee Louis Shapiro, with the consent of
the parties, entered a final judgment by stipulation in the
consolidated actions, a judgment which promised to end
years of litigation. Pursuant to the judgment by stipula-
tion, the plaintiff, still represented by Rogin, Nassau,
Caplan, Lassman & Hirtle, agreed, inter alia, to sell the
disputed parcels of land to the state for $518,000.

The resolution of the matter was short-lived. Only
days after the settlement, Simmons voiced his refusal to
accept the terms of the judgment, terms which he had
previously stated were satisfactory. Specifically, Simmons
wanted to retain one piece of “Parcel A,” the whole of
which he had agreed to sell on December 13, 1977. Again,
the plaintiff’s attorneys negotiated. On January 4, 1978,
the state agreed to allow the plaintiff to retain the
requested portion of Parcel A. In return, the plaintiff
agreed to sell the remaining disputed land for $385,600.
He further agreed that the ‘[jludgment entered in this
matter be a full and final settlement between the parties
of any and all claims and disputes concerning said par-
cels of land and any and all other claims contained in the
above consolidated cases.” Memorandum in Support of
Motion to Dismiss (filed Oct. 7, 1987) (“State Defendant's
Memorandum”), Exhibit A at 3. Pursuant to the new

A-12

agreement and judgment, a closing was scheduled for
January 24, 1978, at which time the exchange of title was
to be consummated. See Affidavit of Robert Hirtle attached
to Motion for Summary Judgment by Defendants Edward
Rogin and Robert Hirtle (filed Jan. 6, 1988) at 2-3.

Before the closing, however, Simmons apparently
encumbered the property by leasing a portion of it, not-
withstanding that he knew title was to vest in the state
pursuant to the stipulated judgment. Simmons took this
action without the prior knowledge of his attorneys, and
eventually, he refused to cooperate with his attorneys. On
April 20, 1978, the firm sent the plaintiff a notice of its
withdrawl [sic] as his counsel. See id. at 3.

On June 1, 1978, the plaintiff, acting pro se, filed a
motion to reopen the judgment entered January 4, 1978.
In rejecting the plaintiff’s request, the state referee wrote:

The plaintiff argued that Attorney Robert L.
Hirtle, Jr., of the firm Rogin, Nassau, Caplan,
Lassman and Hirtle, failed to disclose to him
that he once served as an assistant attorney
general for the State. His claim is that this cre-
ated a conflict of interests and thereby he was
not fully and adequately represented at the
prior proceedings. It is true that Hirtle served as
an assistant attorney general between 1965 and
1971. Thereafter he joined the Rogin law firm.
Hirtle stated that before the Rogin firm entered
the settlement talks he discussed with the plain-
tiff his former affiliation. The plaintiff was
informed by his other counsel that Hirtle’s inter-
vention would be beneficial to the plaintiff. As it
turned out, Attorneys Salzman and Silverman
who represented the plaintiff in the trial before
me of case #162923, Simmons v. Parizek, et al.

tiated iia

A-13

which went to judgment, were unable to negoti-
ate a post judgment settlement with the state.
The Rogin firm entered an appearance at a later
date and the participation of attorneys Edward
Rogin and Hirtle in discussions with the attor-
ney general’s office brought results. At a date
prior to January 4, 1978, being on December 13,
1977, these five cases were settled by agreement
with plaintiff and all attorneys. At this point, the
plaintiff lauded his counsel and stated for the
record his satisfaction with the settlement in the
amount of five hundred and eighteen thousand
dollars. A judgment was entered for the amount
with full and clear consent of the plaintiff. A
few days later, the plaintiff suddenly notified
the court that he was unhappy with the settle-
ment. As a result, with consent of counsel, the
judgment was vacated ....

Plaintiff and his counsel, following further
discussion with the Attorney General’s office,
came before the undersigned at a hearing on
January 4, 1978. As a result of further discus-
sions between the parties, an agreement was
reached whereby the plaintiff was to retain the
portion of land to which he desired to retain
title. . . . Following this action judgment was
entered on January 4, 1978... .

I have carefully reviewed the plaintiff’s
claims under his motion. I find that in entering
the judgment of January 4, 1978, the plaintiff
was fully, adequately and skillfully represented
by counsel at these prior proceedings. I find no
conflict of interests as may be related to Attor-
ney Hirtle. He rendered the highest degree of
service and devotion to his client’s (Plaintiff's)
interest. As a result, the settlement reached was,
in my judgment, the optimum. The plaintiff
stated for the record, on January 4, 1978, how
pleased he was with the result.

A-14

I must conclude that I find no merit in
plaintiff’s motion. He has played fast and loose
with the court, his counsel and the state. His
conduct is devious indeed.

State Defendants’ Memorandum, Exhibit E.

Accordingly, the state secured a supplemental judg-
ment dated June 2, 1978, see id., Exhibit B, under which all
encumbrances on the property were to be removed, and
title to the disputed parcels of land automatically was .

vested in the state. The state referee further ordered the

state to deposit with the Clerk of the Superior Court
$385,600 on behalf of plaintiff. Plaintiff appealed the stip-
ulated judgment, and the Supreme Court upheld it and
the findings of the trial referee. See Simmons v. Wetherall,
180 Conn. 587 (1980) (per curiam). As of June 29, 1987,
pursuant to this judgment, there was on deposit in
United States treasury bills the sum of $497,314.24. This
sum represents principal and interest and apparently is
available to plaintiff upon appropriate motion to the
Clerk of the Superior Court. See State Defendants’ Mem-
orandum, Exhibits C and D.

Ignoring principles of res judicata and collateral
estoppel, plaintiff then commenced a new series of state
and federal court actions in which he raised claims which
were, without exception, reiterations of the claims ulti-
mately decided by the state Supreme Court in Simmons v.
Wetherall.

For example, in 1981, the plaintiff initiated an action
in this court in which he alleged that the taking of his
land had violated his constitutional rights. See Simmons v.
United States Government, Civil No. H-81-778 (JAC). In

ae ntleaeeeeeammiaiiaiieiaiiiiiill

A-15

1983, he initiated another action which sounded in tres-
pass and ejectment. See Simmons v. United States of Amer-
ica, Civil No. H-83-225 (TEC). These two cases were
consolidated in this court and dismissed as barred by res
judicata in an order also noting that, by bringing these
cases in federal court, plaintiff was impermissibly mount-
ing collateral attacks on a valid state court judgment. See
Order (dated Aug. 16, 1983) (Cabranes, J.). Our court of
appeals affirmed that decision on appeal. See Simmons v.
Powers, Simmons v. United States, Docket No. 83-6257 (2d
Cir. Dec. 20, 1983) (unpublished order); see State Defen-
dants’ Memorandum, Exhibits F and G. Thereafter, the
United States Supreme Court denied plaintiff’s petition
for a writ of certioriari [sic]. See State Defendants’ Mem-
orandum, Exhibit H.

Notwithstanding the rejection of his claims by every
state and federal trial and apellate [sic] court having any
arguable basis for assuming jurisdiction, this zealous liti-
gant initiated yet another federal lawsuit in January, 1985.
The plaintiff’s strategy to avoid the res judicata effect of
the 1978 state supplemental judgment was to allege new
violations of federal statutes and to bring in an assort-
ment of new defendants to join the old. Again, the court
dismissed the complaint on res judicata grounds. See
Simmons v. Dole, Civil No. H-85-45 (D.Conn. Apr. 8, 1985)
(Blumenfeld, J.). Again, plaintiff appealed and the Court
of Appeals affirmed, stating:

We agree with the April 8, 1985, order of the
district court dismissing appellant’s claims on
the ground of res judicata. We also consider this
a frivolous appeal. Appellant has litigated the
Same matters numerous times before in both
state and federal courts over a period of many

A-16

years. Because appellant is a pro se litigant, we
are not imposing sanctions at this time. How-
ever, appellant is hereby placed on notice that
he risks imposition of sanctions in the future
should be seek once again to relitigate these
same matters.

Simmons v. United States, Docket No. 85-6087 (2d Cir. Nov.
22, 1985) (unpublished order).

Undeterred, plaintiff mounted another attack in Con-
necticut Superior Court just a few months later. In the
new suit, filed in January 1986, he attempted to recover
damages from the state. The state’s motion to dismiss was
granted. The Connecticut Appellate Court affirmed the
dismissal, see Simmons v. Burns, 9 Conn.App. 802 (1986)
(per curiam), and the Connecticut Supreme Court denied
certification to appeal, see Simmons v. Burns, 201 Conn.
815 (1986).

II
THE INSTANT ACTION

Plaintiff commenced the instant action in Connecticut
Superior Court on August 10, 1987. The action was
removed on the petition of one of the defendants, the
Administrator of the Federal Aviation Administration.
The only even arguable new element in this suit is a claim
that plaintiff has suffered from legal malpractice at the
hands of his former attorneys, Edward Rogin and Robert
Hirtle. Cf, Opinion of State Referee, quoted above in this
Ruling at 5-6.

Prior to transferring the case to the docket of this
court, Judge Dorsey granted a motion to dismiss the

. |

A-17

action as to state defendants Julia Tashjian, Secretary of
the State of Connecticut, and J. William Burns, the Com-
missioner of the Connecticut Department of Transporta-
tion on res judicata grounds. See Simmons v. Burns, Civil
No. H-87-732, Ruling on Motion to Dismiss (D.Conn.
Nov. 19, 1987). Plaintiff has filed what can be construed
as an objection to the granting of the state defendants’
motion to dismiss, which is one of the pending motions to
which this ruling is addressed.

Thereafter, defendants Rogin and Hirtle filed a
motion for summary judgment and the federal defendant
filed a motion to dismiss. These pending motions present
the court with the opportunity to write the final chapter
of this lengthy and tiresome story.

A. The Motions to Dismiss

The doctrine of res judicata bars relitigation of the
same cause of action between the same parties or their
successor in interest. See Mohegan Tribe v. Connecticut, 528
F.Supp. 1359, 1370 n. 2 (D.Conn. 1982). It is an absolute
bar not only as to every matter which was offered to
sustain a claim, but also as to any other matter which
might have been offered for that purpose. See State v.
Aillon, 189 Conn. 416, 423, cert. denied, 464 U.S. 837 (1983).
“[A] federal court must give to a state court judgment the
same preclusive effect as would be given that judgment
under the law of the State in which the judgment [sic]
was rendered.” Migra v. Warren City School District Board
of Education, 465 U.S. 75, 81 (1984). Moreover, a litigant
“may not engage in extensive proceedings throughout the
state court system, and then, after every point has been

A-18

decided against him by the state courts and the Supreme
Court has denied certiorari, make a fresh start in federal
court.” Friarton Estates Corp. v. City of New York, 681 F.2d
150, 159 (2d Cir. 1982). Thus, issues which were actually
litigated, or which could have been litigated, in a state
court proceeding are entitled in a federal suit to the same
preclusive effect accorded them by the state. Migra, 465
U.S. at 83; Allen v. McCurry, 449 U.S. 90, 94 (1980); accord
Kaufman v. Somers Board of Education, 368 F.Supp. 28, 33
(D.Conn. 1973).

In Connecticut, a valid judgment entered by agree-
ment or consent operates to end the controversy to the
same extent as would a valid judgment rendered after
adjudication on the merits. See Connecticut Pharmaceutical
Association v. Milano, 191 Conn. 555, 558 (1983); Gagne v.
Norton, 189 Conn. 29, 34 (1982). The Connecticut Supreme
Court in Simmons v. Wetherall, 180 Conn. 587 (1980),
upheld the actions of the state referee whereby title of the
disputed land vested in the State of Connecticut. In the
instant action, plaintiff asserts claims which rest upon his
purported legal ownership of the same land.

Accordingly, Plaintiff’s Motion to Set Aside Dismissal
of State Defendants (filed Dec. 1, 1987) is DENIED, and
the case against them is dismissed with prejudice.

Because the claims against the federal defendant rest
upon the claim that the State of Connecticut is in wrong-
ful possession of plaintiff’s land, they are likewise barred.
The Federal Defendant’s Motion to Dismiss (filed Nov.
30, 1987) is therefore GRANTED, and the case against
him is dismissed with prejudice.

TT

A-19

B. Defendants Rogin’s and Hirtle’s Motion for Summary
Judgment

Liberally construed, the complaint against Attorneys
Rogin and Hirtle can be viewed as alleging fraud, breach
of contract or legal malpractice. The adequacy and loyalty
of their representation of plaintiff was explicitly
addressed and decided against plaintiff by the state ref-
eree; the referee’s denial of plaintiff’s motion to reopen
the judgment based claims of inadequate representation
were upheld by the Connecticut Supreme Court in Sim-
mons v. Wetherall, 180 Conn. at 589. Because the record
does not demonstrate clearly that Rogin and Hirtle have
been parties to litigation on the merits of any of these
claims, there is some doubt whether they would be enti-
tled in Connecticut courts to assert the prior state court
judgment as a defense. See State v. Ellis, 197 Conn. 436,
462-69 (1985); Doe v. Maher, 40 Conn.Supp. 394, 405, 515
A.2d 134 (New Haven, 1986). It could be argued, consis-
tently with the rationales of these decisions, that defen-
dants should be so entitled because this plaintiff certainly
has had a full and fair opportunity to litigate the claims.
See DiMauro v. Pavia, 492 F.Supp. 1051, 1059 n. 7
(D.Conn.), aff'd mem., 614 F.2d 1286 (2d Cir. 1979).

In any event, the record reveals another clear ground
for granting summary judgment for Rogin and Hirtle. It
is undisputed that these two attorneys ceased represent-
ing plaintiff almost nine years ago. Moreover, since plain-
tiff explicitly questioned the adequacy of their
representation before the state referee in 1978, he cannot
credibly argue that, until recently, he was unaware of the
harm which he is alleged to have suffered at their hands.

A-20

Any suit based upon their representation is certainly
barred by whatever statute of limitations might arguably
be applicable. See Conn. Gen. Stat. § 52-576 (six-year
limitation for actions based on simple or impled [sic]
contract) and § 52-577 (three-year limitation for actions in
tort, held applicable to legal malpractice in Shuster v.
Buckley, 5 Conn.App. 473, 477 (1985)).

C. Prospective Relief

Finally, the court would be remiss if it did not put an
end to plaintiff’s vendetta and relieve its victims from the
burden of vexatious relitigation of these issues. See In re
Martin-Trigona, 737 F.2d 1254, 1262 (2d Cir. 1984), cert.
denied, 106 S.Ct. 807 (1986); see also Procup v. Strickland,
792 F.2d 1069, 1073 (11th Cir. 1986). The District Court has
the authority to issue “all writs necessary or appropriate
in and of their respective jurisdictions and agreeable to
the usages and principles of law.” 28 U.S.C. § 1651(a). It
may be appropriate in some circumstances to enter an
injunction to prevent the continuation of harassments
which come from frivolous and repetitious lawsuits. See,
e.g., Matter of Hartford Textile Corp., 681 F.2d 895, 897 (2d
Cir. 1982), cert. denied, 459 U.S. 1206 (1983). Courts are not
to be used as a vehicle for harassment by a litigant who
asserts the same baseless claim repeatedly in slightly
altered guises. See Kane v. City of New York, 468 F.Supp.
586, 590 (S.D.N.Y.), aff'd mem., 614 F.2d 1288 (2d Cir.
1979). Although an order enjoining a particular plaintiff
from commencing future actions is an unusual step, the
courts have not hesitated to enter such orders where a
litigant continues to abuse the legal process, and defen-
dants, by filing meritless claims. See, e.g., In re Martin-

Te

A-21

Trigona, 763 F.2d 140 (2d Cir. 1985), cert. denied, 106 S.Ct.
807 (1986).

Apart from such extraordinary and pathological
examples as Anthony R. Martin-Trigona, it would be
difficult to find a litigant more pertinacious that [sic]
Augustus J. Simmons. This plaintiff has brought approx-
imately one dozen suits arising out of the state’s initially
inept attempt to condemn his land over twenty years ago.
At this point in his “legal career,” he could not credibly
argue that he believes, in good faith, that his claims have
merit. See Fed. R. Civ. P. 11. He has harassed a variety of
defendants and has squandered the resources of both
state and federal courts, all due to his persistent refusal to
accept as final the 1978 supplemental judgment of the
Hartford Superior Court, and the 1980 decision of the
Connecticut Supreme Court upholding that judgment.
Our Court of Appeals has warned him unequivocally that
he would risk the imposition of sanctions if he persisted
in filing the same claim. It is difficult to believe, however,
that any sanction, short of an injunction, would either be
effective or appropriate to protect potential defendants
and preserve judicial resources for other litigants who
await their own day in court.

Accordingly, the court hereby ENJOINS plaintiff,
Augustus J. Simmons, from filing in the United States
District Court for the District of Connecticut or any other
federal court any lawsuit in which he asserts the same
claims as were litigated, or as might have been litigated,
in the Connecticut Superior Court cases referred to as
Simmons v. Weatherall, Docket No. 163875 (Superior Court
at Hartford, Jan. 4, 1978, as modified June 2, 1978), aff'd,

A-22

180 Conn. 587 (1980), and all the cases consolidated there-
with.

1. This injunction includes any filing in which the
harm is alleged to have arisen from or relate to the
plaintiff’s ownership, at one time, of the parcels of land
in the Town of East Granby as described in the original
and supplemental judgments in Simmons v. Wetherall,
Docket No. 163875, supra, and all cases consolidated
therewith.

2. Plaintiff is also enjoined from filing any state or
federal claims in any federal court against any of the
defendants named in the complaint in this lawsuit of
such lawsuit related to his alleged ownership of the par-
cels of land described in the original and supplemental
judgments in Simmons v. Wetherall, Docket No. 163875,
supra, and all cases consolidated therewith.

3. This injunction applies only to lawsuits of the
sort described above filed in the federal courts, including
the United States District Court for the District of Con-
necticut. Nothing in this order shall be construed as
restricting plaintiff’s ability to file a suit in any state
court. Nor shall it be construed as restricting plaintiff's
ability to file suit in any federal court, so long as the
lawsuit does not relate to plaintiff’s alleged ownership of
the parcels of land described in the original and supple-
mental judgments in Simmons v. Wetherall, Docket No.
163875, supra, and all the cases consolidated therewith.

4. Nothing in this order shall be construed to deny
plaintiff access to the United States Court of Appeals for
the Second Circuit, or to the Supreme Court of the United
States, in any matter.

A-23

5. Nothing in this order shall be construed to pro-
hibit Augustus J. Simmons from filing complaints under
28 U.S.C. § 372(c), provided, however, that nothing in this
order, and nothing in this subsection in particular, shall
be construed as intimating any view on the constitu-
tionality of 28 U.S.C. § 372. See, e.g., Rule § 0.24, Com-
plaints with Respect to Conduct of Judges, Rules of the
United States Court of Appeals for the Second Circuit
(Nov. 1983) (identical disclaimer by the Judicial Council
of the United States Court of Appeals for the Second
Circuit).

6. All future complaints submitted by plaintiff to
this court shall first be reviewed for compliance with this
order. Any complaint that does not comply with this
order shall not be docketed and will be returned to plain-
tiff.

In entering this injunction, the court reserves the
right to order such additional relief as may become
appropriate or necessary to accomplish its objective of
protecting individuals and the system of justice from
further abuse by this litigant.

Ill
CONCLUSION
For the reasons stated above:

(1) Plaintiff’s Motion to Set Aside Dis-
missal of State Defendants is DENIED, and the
case against the state defendants in DISMISSED
with prejudice.

(2) The Federal Defendant’s Motion to Dis-
miss is GRANTED, and the case against it is
DISMISSED with prejudice.

A-24

(3) The Motion for Summary Judgment of
Defendants Rogin and Hirtle is GRANTED.
There being no just cause for delay, judgment
shall enter forthwith for defendants Rogin and
Hirtle. See Fed. R. Civ. P. 54(b).

(4) The other pending motions, identified
in the note at the margin and having been
resolved by decisions on the above motions, are
denied as moot.!

(5) Plaintiff is enjoined, as specified above,
from filing any lawsuit in federal court in which
he asserts the same claims as were litigated, or
might have been litigated, in the Connecticut
Superior Court cases referred to as Simmons v. -
Wetherall, Docket No. 163875 (Superior Court at
Hartford, Jan. 4, 1978, as modified June 2, 1978),
aff'd, 180 Conn. 587 (1980), and all the cases
consolidated therewith.

It is so ordered.

Dated at New Haven, Connecticut, this 15th day of
March, 1988.

Jose A. Cabranes
United States District Judge

A-25

NOTE

' The following motions filed by plaintiff are hereby
denied as moot: Motion for Payment of Rent (filed Sept. 29,
1987); Motion for Order of Referral and Enforcement of 49
U.S.C. § 2216 (filed Nov. 12, 1987); Petition for Hearing on
Determination of Due Process (Civil Process) Under 14th
Amendment Upon all Necessary Parties (filed Nov. 19, 1987);
Motion for Payment of Real Property Taxes by Federal Aviation
Administration under 49 CFR § 25.106(c) (filed Nov. 25, 1987);
Motion to Set Aside State Court Judgment Rendered Without
the “Necessary Parties” (filed Dec. 30, 1987); Motion to Set
Aside State Court Judgment Rendered Without Just Compensa-
tion (filed Dec. 30, 1987); Motion to Set Aside State Court
Judgment Rendered Without Jurisdiction and in Violation of
Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970 (filed Dec. 30, 1987); Motion to Set Aside
State Court Judgment Rendered Without Due Process (filed
Dec. 30, 1987).

A-26

CONN
H-87-732
CRABRANES

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

* * *

At a stated Term of the United States Court of
Appeals for the Second Circuit, held at the United States
Courthouse in the City of New York, on the 14th day of
September one thousand nine hundred and eighty-eight.

Present:

HONORABLE J. EDWARD LUMBARD,
HONORABLE J. DANIEL MAHONEY,

Circuit Judges
HONORABLE CON. G. CHOLAKIS,
District Judge.*

AUGUSTUS J. SIMMONS, ORDER
Plaintiff-Appellant, 58-609:
ive (Filed
c SEP 14 1988)
J. WILLIAM BURNS, et al., ISSUED AS
Defendants-Appellees. MANDATE:
October 5,
1988

* Hon. Con. G. Cholakis, District Judge, United States District
Court for the Northern District of New York, sitting by desig-
nation.

_— yor

A-27

Appeal from the United States District Court for the
District of Connecticut.

This cause came to be heard on the transcript of
record from the United States District Court for the Dis-
trict of Connecticut, and was argued by appellant pro se
and by counsel for appellees.

ON CONSIDERATION WHEREOF, it is now hereby
ordered, adjudged and decreed that the order of said
district court be and it hereby is AFFIRMED, and appel-
lant is assessed double court costs.

1. We affirm for the reasons stated in the ruling of
the district court. We also consider this a frivolous
appeal. This is appellant’s third appearance before this
court in the past five years, and on each occasion res
judicata barred or bars his reassertion of the same claims
which were either fully litigated or should have been
litigated in prior state and federal proceedings. In his last
appearance before this court, Simmons v. United States of
America, et al., Docket No. 85-6087 (2d Cir. Nov. 22, 1985)
(unpublished order), appellant Simmons was placed on
notice that he risked imposition of sanctions should he
seek to appeal the same matters again.

2. It is accordingly appropriate to assess double
court costs against appellant pursuant to Fed. R. App. P.
38.

3. We specifically call to appellant’s attention that
we affirm the order of the district court in all respects,
including its injunction against further federal litigation

A-28

concerning these claims, and that any violation of that
injunction may be punished as a contempt of court.

/s/ J] Edward Lumbard
J. Edward Lumbard,

/s/ J} Daniel Mahoney
J. Daniel Mahoney,
Circuit Judges
/s/ Con. G Cholakis

Con. G. Cholakis,
District Judge

N.B. This summary order will not
be published in the Federal Re-
porter and should not be cited or
otherwise relied upon in unrelated
cases before this or any other
court.

A-29

SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
WASHINGTON, D.C. 20543
November 28, 1988

Mr. Carl J. Schuman
Office of Atty. General
30 Trinity Street
Hartford, CT 06106

Re: Augustus J. Simmons,
v. J. William Burns, Commissioner, Connect-
icut Department of Transportation, et al.
No. 88-693

Dear Mr. Schuman:

The Court today entered the following order in the
above entitled case:

The petition for a writ of certiorari is denied.

Very truly yours,

Joseph F. Spaniol, Jr., Clerk
/s/ Joseph F. Spaniol, Jr.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2444%3A2. Public record. Not legal advice.