Harris v. Neale
| Decision Date | 28 April 2020 |
| Docket Number | AC 42301 |
| Citation | 197 Conn.App. 147,231 A.3d 357 |
| Court | Connecticut Court of Appeals |
| Parties | Victor HARRIS et al. v. Christine NEALE et al. |
John C. Turner, Jr., Bridgeport, for the appellant (named plaintiff).
Ashley A. Noel, Hartford, with whom, on the brief, was Kevin R. Kratzer, Hartford, for the appellees (defendants).
Alvord, Moll and Beach, Js.
The plaintiff Victor Harris appeals from the judgment of the trial court denying his motion to open the judgment of dismissal rendered in favor of the defendants, Christine Neale and Christopher Neale. On appeal, Harris claims that the court abused its discretion in denying his motion to open. We agree and, accordingly, reverse the judgment of the trial court.
The following facts and procedural history are relevant to our resolution of Harris’ appeal. On October 15, 2016, Harris’ mother, Andrea Hill, acting as both Harris’ next friend1 and coplaintiff, commenced the present action against the defendants.2 The plaintiffs, who were represented by Attorney John Cirello, alleged that Harris, who was a minor both at the time of the injury and the commencement of the action, had sustained injuries in October, 2014, while riding a dirt bike over a ramp in the defendants’ backyard. Hill sought to recover medical expenses she had paid on behalf of Harris. On March 10, 2017, the court, Kamp, J. , approved a scheduling order, inter alia, requiring the completion of discovery by September 30, 2017, setting a pretrial conference for January 24, 2018, and scheduling trial to begin in February, 2018. Following the defendants’ filing of a request to revise, the plaintiffs filed the operative complaint on March 21, 2017. In the four count operative complaint, each plaintiff alleged one count of negligence on the basis of parental liability and one count of premises liability. On April 21, 2017, the defendants filed an answer and special defenses.
On April 27, 2017, the plaintiffs sought and received a sixty day extension of time to respond to the defendants’ interrogatories and requests for production dated February 17, 2017. On September 27, 2017, the defendants filed a motion to compel the deposition of Harris, arguing that they twice had been required to mark off Harris’ noticed deposition because they had not received the plaintiffs’ discovery responses. They represented that they had not received any subsequent dates from the plaintiffs to conduct Harris’ deposition, despite having made numerous requests. The defendants represented that they had renoticed the deposition for October 17, 2017, and sought an order from the court compelling Harris to appear on that date or within thirty days of the filing of the motion to compel. On October 10, 2017, the court, Kamp, J. , granted the motion and ordered Harris to submit to a deposition on or before October 31, 2017, or be subject to a nonsuit on motion from the defendants.
On November 24, 2017, the defendants filed a motion for order of compliance, in which they alleged that the plaintiffs had failed to produce records critical to the evaluation and defense of the plaintiffs’ claims against them. They requested, inter alia, that the court compel the plaintiffs to comply with the defendants’ standard discovery requests and, in the event that the plaintiffs failed to comply fully on or before December 6, 2017, that the court enter a judgment of nonsuit and/or dismissal. On November 30, 2017, the defendants filed a motion for nonsuit, claiming that the plaintiffs had failed to comply with two court orders, the order requiring Harris to submit to a deposition by October 31, 2017, and the order granting the plaintiffs an extension of time, through May 18, 2017, to respond to the defendants’ discovery requests. With respect to the deposition, the defendants represented that it had been further delayed, first at the plaintiffs’ request because Harris’ father was in critical medical condition and was to be placed in a medically induced coma, and second, at the request of the plaintiffs’ counsel due to his trial schedule. According to the defendants, they had renoticed Harris’ deposition for November 27, 2017, and the plaintiffs failed to appear on that date. Neither the defendants’ motion for order of compliance nor their motion for nonsuit was ruled on, and both were marked off by the court, Bellis, J. ,3 on January 16, 2018.
By motion filed on November 20 and amended on December 22, 2017, Cirello sought to withdraw his appearance on behalf of the plaintiffs on the basis that a conflict of interest had arisen with and between the plaintiffs.4 Specifically, Cirello represented that the plaintiffs had "recently been feuding and refuse to speak or be in the same building as one another." He further stated that Harris had requested that he remove Hill as a plaintiff. He represented that the deteriorating relationship between the plaintiffs had resulted in a lack of communication between the plaintiffs and himself and had materially limited his ability to adequately represent each of their interests. Accordingly, he requested that the court withdraw his appearance on behalf of both plaintiffs and stay the proceedings for three months or other reasonable time to provide the plaintiffs with sufficient time for each to retain independent counsel. The motion was scheduled for a hearing on January 16, 2018, on which date the court granted the motion. Three days later, the defendants filed a motion for default against the plaintiffs for failure to appear, which was not ruled on by the court.
On January 23, 2018, the defendants filed a caseflow request, in which they stated that The court's order on the caseflow request stated: The plaintiffs then sought to have the status conference postponed to February 24, 2018. In support of their motion for a continuance, the plaintiffs stated: "Self-represented party kindly requests continuance to allow action to be taken on motion to open judgment regarding motion to withdraw appearance and time to procure counsel." The court denied the plaintiffs’ motion for a continuance.
By motion filed January 24 and amended January 25, 2018, the plaintiffs sought to vacate the court's order permitting Cirello to withdraw his appearance. In support of their motion, the plaintiffs argued, inter alia, that neither Hill nor Harris had been served with notice of the hearing on the motion to withdraw, that Hill did not appear at the hearing because of a medical emergency, and that Harris was concerned regarding "erroneous proceedings against a minor or person of unsound mind." Also on January 24, 2018, Hill filed an appearance as a self-represented party, and the next day, Harris did the same. On January 29, 2018, Harris filed a caseflow request again seeking that the January 30, 2018 status conference be rescheduled, stating: "Victor Harris is a minor with major neurocognitive disorder due to traumatic brain injury
with behavioral disturbance who filed an appearance per instruction of prior counsel in order case is not dismissed for failure to appear still on day before court, kindly request status conference to instead be scheduled once minor is represented by counsel or following ruling on motion to vacate order." On January 30, 2018, the court sua sponte entered an order that provided:
On February 13, 2018, Hill filed a caseflow request seeking to have the trial continued. In support of her request, she stated that she needed time to prepare for trial following her counsel's withdrawal in January. She also informed the court that a guardianship proceeding had been commenced that day in the Bridgeport Probate Court and represented that such matters are generally resolved in sixty days. On February 20, 2018, the court entered an order with respect to Hill's caseflow request: "This will be addressed on [February 27, 2018,] as caseflow does not have the plaintiffs’ telephone numbers to schedule a status conference prior to that." On February 27, 2018, the trial was continued to May 24, 2018, to afford the plaintiffs additional time to obtain counsel, and a status conference was scheduled for April 3, 2018.5
On April 2, 2018, the plaintiffs filed a motion to substitute Harris’ stepmother, Mildred Mutape, "as a named party" in place of Hill. In support of their motion, the plaintiffs attached a March 19, 2018 order from the Bridgeport Probate Court, which indicated, inter alia, that Hill had consented to the appointment of a temporary custodian of Harris and that Mutape had been appointed his temporary custodian.
Also on April 2, 2018, the defendants filed a motion for nonsuit as to Hill, pursuant to Practice Book § 13-14, alleging that Hill had failed to comply with the court's order requiring Harris to submit to a deposition and its order granting the plaintiffs an extension of time to comply with the defendants’ discovery requests. On April 3, 2018, Hill filed a withdrawal form indicating that she sought to withdraw from the action as a party plaintiff.6 In an April 11, 2018 order, the court acknowledged that Hill was "no longer a party in this case by virtue of a withdrawal filed [April 3, 2018]."
On May 24, 2018, the date trial was set to begin, Harris did not appear in court. Mutape attended...
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