Biro v. Hill

Citation231 Conn. 462,650 A.2d 541
Decision Date06 December 1994
Docket NumberNo. 14992,14992
PartiesSteven G.M. BIRO et al. v. Thomas W. HILL, Jr., et al.
CourtSupreme Court of Connecticut

Peter L. Truebner, Stamford, for appellants (plaintiffs).

Robert G. Oliver, with whom, on the brief, was Carolyn P. Gould, New Haven, for appellee (defendants Sidley and Austin).

Before PETERS, C.J., and BORDEN, BERDON, NORCOTT and PALMER, JJ.

PER CURIAM.

The plaintiffs appeal 1 challenging the action of the trial court, Rush, J., denying their motion for reconsideration of a judgment of nonsuit previously rendered against them, and denying their motion to set aside that judgment. 2 In this appeal, the plaintiffs challenge: (1) the rendition of the original judgment of nonsuit; (2) the denial of their motion to set aside that judgment; and (3) the denial of their motion to reconsider both the judgment of nonsuit and the denial of their motion to open the judgment of nonsuit. 3 After full and careful consideration of the relevant portions of the trial court record and of the briefs of the parties on appeal, we conclude that: (1) under the Practice Book and our well established case law, all of the challenged rulings of the trial court were matters committed to the discretion of the trial court; and (2) any such procedural considerations aside, on their merits all of the challenged actions of the trial court were within its discretion. 4 We therefore affirm the judgment of the trial court.

On July 13, 1992, the trial court ordered a nonsuit entered against the plaintiffs for their failure to respond to certain discovery requests that had been filed by the defendant on October 18, 1991. The nonsuit followed the plaintiffs' failure to comply, even partially, with the discovery requests on three previously entered deadlines for compliance, namely, December 18, 1991, February 18, 1992, and July 2, 1992. Practice Book § 231 gives the trial court discretion to impose appropriate sanctions for the failure to comply with discovery requests "as the ends of justice require." 5 The factors to be considered by the court include: (1) whether noncompliance was caused by inability, rather than wilfulness, bad faith or other fault; (2) whether and to what extent noncompliance caused prejudice to the other party, including the importance of the information sought to that party's case; and (3) which sanction would, under the circumstances of the case, be an appropriate judicial response to the noncomplying party's conduct. Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 144, 470 A.2d 246 (1984). As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did. See, e.g., Pool v. Bell, 209 Conn. 536, 541, 551 A.2d 1254 (1989); DiPalma v. Wiesen, 163 Conn. 293, 298-99, 303 A.2d 709 (1972). We are convinced that the trial court properly considered all of the relevant factors in ordering the nonsuit. The record demonstrates, furthermore, that, as is appropriate, the trial court recognized that a nonsuit is among the most drastic of the available remedies, and that it exercised its discretion with due caution and restraint in ordering that sanction. 6 We conclude, therefore, that the trial court did not abuse its discretion in ordering the nonsuit.

Despite the trial court's invitation based upon the plaintiffs' representations; see footnote 6; the plaintiffs did not file their motion to set aside the judgment of nonsuit until September 17, 1992. In their counsel's affidavit in support of their motion, the plaintiffs asserted that the reason for their failure to comply with the discovery orders, for which the judgment of nonsuit had been rendered, "was [the] Plaintiffs' decision to retain new attorneys and a belief that it would be unfair to bind new counsel with responses to interrogatories and production requests before he had opportunity to evaluate the case." The plaintiffs also asserted that they had now complied with the discovery requests. The defendant disputed that such compliance had occurred. The defendant also opposed the motion on the grounds that the plaintiffs had not satisfied the requirements for setting aside a judgment of nonsuit, and that the late and incomplete disclosure would be unduly prejudicial in light of a trial date already set for early December. After full oral argument on the motion and the defendant's objection, the trial court, on October 7, 1992, denied the motion to set aside the judgment of nonsuit without a written or oral memorandum of decision. The plaintiffs did not seek an articulation of that ruling.

The power of the court to set aside a judgment of nonsuit is governed by General Statutes § 52-212. 7 Jaconski v. AMF, Inc., 208 Conn. 230, 237, 543 A.2d 728 (1988); Pantlin & Chananie Development Corp. v. Hartford Cement & Building Supply Co., 196 Conn. 233, 240, 492 A.2d 159 (1985); see also Practice Book § 377. 8 The plaintiff must establish that a good cause of action, the nature of which must be set forth, existed when the judgment of nonsuit was rendered, and that the plaintiff was prevented from prosecuting it because of mistake, accident or other reasonable cause. Pantlin & Chananie Development Corp. v. Hartford Cement & Building Supply Co., supra. In ruling on a motion to open a judgment of nonsuit, the trial court must exercise sound judicial discretion, which will not be disturbed on appeal unless there was an abuse of discretion. Id., at 237-38, 492 A.2d 159. In reviewing the trial court's exercise of its discretion, we make every presumption in favor of its action. Acheson v. White, 195 Conn. 211, 215, 487 A.2d 197 (1985). This record amply supports the trial court's denial of the plaintiffs' motion, and we can discern no abuse of discretion that would justify reversing that action.

On November 12, 1992, the plaintiffs filed a motion to reargue and for reconsideration of: (1) the judgment of nonsuit; and (2) the denial of their motion to open that judgment. Although the motion stated that "[s]upporting affidavits and a memorandum of law are attached," those documents were not attached either to the motion filed in court or to the copy sent to the defendant, and they were not filed in court until November 18, 1992. The defendant objected on both procedural and substantive grounds. After full oral argument, the trial court denied the plaintiffs' motion without a written or oral memorandum of decision, and the plaintiffs did not seek articulation. Having examined the record, we can find no basis upon which to reverse the trial court's exercise of discretion in denying the plaintiffs' motion.

The judgment is affirmed.

BERDON, Associate Justice, concurring.

I agree with the majority that the trial court in this case did not abuse its discretion in entering a disciplinary nonsuit pursuant to Practice Book § 231 and in refusing to set aside the judgment of nonsuit pursuant to General Statutes § 52-212. I write separately in order to emphasize that the entry of a nonsuit is a drastic remedy and should be considered only as a last resort. There are, of course, other effective ways of persuading the errant party to comply with rules of discovery, such as awarding attorneys' fees to the discovering party; Practice Book § 231(b); or fining the dilatory attorney. General Statutes § 51-84; In re Mongillo, 190 Conn. 686, 690-91, 461 A.2d 1387 (1983). In this case, on the basis of the record before us, I have no reason to believe that the trial court did not consider these other alternatives.

Seldom are the interests of justice served for either party when litigation fails to be concluded upon its merits. Indeed, when the plaintiff is nonsuited, that does not necessarily put an end to the substantive issues raised. The plaintiff may, in fact, institute a new action. General Statutes § 52-592; see Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 34 n. 6, 474 A.2d 787 (1984); Marangio v. Shop Rite Supermarkets, Inc., 11 Conn.App. 156, 160, 525 A.2d 1389, cert. denied, 204 Conn. 809, 528 A.2d 1155 (1987). Of course, the reinstitution of litigation involves additional attorneys' fees for both parties and an additional burden for the courts. Given such consequences, it may well be in the best interest of the parties and the court to impose sanctions other than a nonsuit on a dilatory litigant.

1 The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c).

2 This is the second time that we have considered this case on appeal. Previously, we reversed the judgment of the trial court, Lewis, J., dismissing the case for failure to join a necessary party. Biro v. Hill, 214 Conn. 1, 570 A.2d 182 (1990).

The plaintiffs are Steven G.M. Biro and his wife, Safiye Guzin Altiok Biro. The sole defendant in this appeal is the law firm of Sidley and Austin. The named defendant, Thomas W. Hill, Jr., was never served, and he is not a party to this case. As to four individual partners of Sidley and Austin, the trial court, Lewis, J., granted a motion to strike, from which no appeal was taken, and they are no longer parties to this case.

We note also that the plaintiffs have brought a...

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