Faile v. Town of Stratford

• Citation: 172 A.3d 206,177 Conn.App. 183
• Decision Date: 17 October 2017
• Docket Number: AC 38912
• Court: Appellate Court of Connecticut
• Parties: David H. FAILE, Jr. v. TOWN OF STRATFORD Paul A. Lange v. Town of Stratford N759ZD, LLC v. Town of Stratford

177 Conn.App. 183

172 A.3d 206

David H. FAILE, Jr.

v.TOWN OF STRATFORD

Paul A. Lange

v.Town of Stratford

N759ZD, LLC

v.Town of Stratford

AC 38912

Appellate Court of Connecticut.

Argued March 9, 2017

Officially released October 17, 2017

Paul M. Grocki, for the appellants (plaintiffs).

Bryan L. LeClerc, for the appellee (defendant).

DiPentima, C.J., and Mullins and Westbrook, Js.

MULLINS, J.

In this joint tax appeal, the plaintiffs, David H. Faile, Jr., Paul A. Lange, and N759ZD, LLC (LLC), appeal from the judgments of nonsuit, rendered by the trial court, in favor of the defendant, the town of Stratford (town). They also appeal from the court's denial of their motions to open the nonsuits. On appeal, the plaintiffs claim that the court's findings that they violated its orders were clearly erroneous, and that, even if we assume, arguendo, that they did violate the orders, the court abused its discretion in rending judgments of nonsuit. We agree with the plaintiffs.¹

Therefore, we reverse the judgments of the trial court.

The following facts, garnered from the record, inform our review. At the time this action was commenced, the plaintiffs owned aircraft hangars, known as T–Hangars (hangars), located at Sikorsky Memorial Airport in Stratford. The hangars were located on land that was leased from the city of Bridgeport. Faile owned two hangars, A–9 and B–11; the LLC owned one hangar, A–3. Lange is the principal of the LLC and a member of the law firm, Law Offices of Paul A. Lange, LLC, which is counsel of record for the plaintiffs in this case.²

The town assessed and taxed the hangars on the grand lists for 2008 and 2009. The plaintiffs appealed the assessments and their taxes to the Board of Assessment Appeals of the town (board), alleging, in relevant part, that the valuations were excessive. After each appeal was denied by the board, the plaintiffs filed appeals in our Superior Court.³ Initially, the appeals were stayed pending the Supreme Court's decision in Stratford v. Jacobelli, 317 Conn. 863, 865–66, 120 A.3d 500 (2015) (concluding that hangars are taxable real property rather than personal property). Once the stay was lifted, the court, on October 1, 2015, sent notice to the parties of a pretrial settlement conference. The court assigned that conference for November 3, 2015.

The notice provided in relevant part: "This case is assigned for pretrial on [November 3, 2015] at 10 a.m. ... The following must attend:

"1) The attorney who will try the case, unless otherwise ordered by Judge [George] Levine;

"2) The attorney who has ultimate authority to make a recommendation to the client, if different from the attorney described in # 1 above.

"If plaintiff is a person(s), the plaintiff(s) must attend. The assessor must attend. Any appraiser retained must attend but need not complete an appraisal report for pretrial. If plaintiff is a corporation or other type of legal entity, a principal who has ultimate authority to negotiate a settlement must be present. ‘Ultimate authority’ means the ability to resolve the case by withdrawing it without any change in assessment, if persuaded it is in plaintiff's best interests, without checking with anyone else. Someone with authority to negotiate a settlement at a preestablished figure does not have ‘ultimate authority.’ A person familiar with the finances and management of the subject property must attend.

"If this date is inconvenient, please select other dates with all counsel/pro se parties and e-file a motion for continuance with proposed dates.

"Failure to comply with this order may result in sanctions, including a judgment of nonsuit or default. If no principal can attend, the parties should contact the court."

On November 4, 2015, the court issued another order, which provided in relevant part:

"By agreement of the parties, the ... matter has been scheduled for another pretrial conference, to be conducted on [December 2, 2015] ....

"All terms of the original pretrial order remain in effect with the following modifications:

"1) The following must attend: Each plaintiff and/or entity and every person who will be called to testify at trial.

"2) Counsel for all parties must bring every piece of paper which will be offered in evidence.

"3) Counsel for each party must be prepared to state all the testimony to which each witness is expected to testify, on a count by count basis and on a year by year basis.

"4) Failure of any plaintiffs to appear will result in a judgment of nonsuit.

"Failure to comply with these terms may result in sanctions, including nonsuit or default."

On November 18 and 19, 2015, the plaintiffs filed motions for continuance of that settlement conference on the ground that discovery was outstanding and the plaintiffs had noticed, but not yet taken, the deposition of the town's tax assessor; the court denied the motions on the same days they were filed. On November 25, 2015, the town filed a motion for extension of time, requesting that the court give it a thirty day extension to respond to the plaintiffs' discovery requests. There is no indication in the record that the court acted on the town's motion.

On Wednesday, December 2, 2015, the parties appeared for the settlement conference. Lange, however, was absent due to his hospitalization on Sunday, November 29, 2015, just a few days before. Attorney Paul Grocki, an attorney with the Law Offices of Paul A. Lange, LLC, was present on behalf of the plaintiffs. Faile also was present. Appearing on behalf of the town was Byran LeClerc. The settlement conference was held in chambers, off the record, but afterward, the court went on the record to consider the town's motions for nonsuit.

During the hearing, the court separately addressed each of the plaintiffs' appeals, with the bulk of the discussion occurring in the first matter, CV–09–4025677–S, which is Faile's appeal from the 2009 decision of the board. LeClerc stated that the town was moving "for nonsuit based upon the plaintiff's failure to have someone present at this morning's pretrial with authority to settle this matter."

Grocki first explained to the court that he had filed a motion for a continuance approximately two weeks earlier due to outstanding discovery, which the court had denied. The court asked Grocki if he had been given the ultimate authority to settle this matter. Grocki responded that he had been given such authority. He further noted that Faile also was present at the settlement conference, and that Faile, certainly, had authority to settle his own cases. Grocki acknowledged that Faile wanted to do whatever Lange recommended, but that, ultimately, the parties were taking the advice of counsel, namely Grocki. Grocki explained to the court that the parties just "couldn't come to an agreement" regarding settlement. He acknowledged that his clients would not settle for a property tax fair market assessment of more than $9000.

The court chastised Grocki for appearing at the settlement conference without having the "ultimate authority" as set forth in the pretrial notices. Grocki argued, however, that he did have the ultimate authority and that Faile, himself, also had been present at the settlement conference. The court asked Grocki why he had not notified the court that Lange would not be present before the parties convened the settlement conference.⁴ Grocki explained that Lange was hospitalized on the Sunday before the pretrial conference, and that they did not know how long he would remain in the hospital.

When they realized that he would not be released in time for the settlement conference, it was too late to notify the court. The court then told Grocki that "the purpose of the language contained in the pretrial notice [was] to make certain that people with unfettered authority [were there] to negotiate a settlement, and further [that it was] required that the attorney, who ha[d] the closest relationship—or ... who ha[d] ultimate authority to make a recommendation to the client must be [there]. Now that clearly is Mr. Lange. Is that correct?" Grocki replied that Lange was an attorney but that Lange, in fact, was not the attorney for these matters.

The court continued to confront Grocki, asking whether Lange actually had the ultimate authority to settle all of these matters, rather than Grocki. Grocki continued to tell the court that he, Grocki, was the attorney for all of the plaintiffs, that Lange was not the attorney for these matters. Grocki further explained that he had the ultimate authority to settle all of these matters, but that the parties would not settle for more than a $9000 fair market assessment.

Despite Grocki's protestations, the court stated that it believed Lange had the ultimate authority to settle Faile's appeal from the 2009 decision of the board, and, because Lange was not present, despite his hospitalization, "it was impossible ... to make a good faith effort at a resolution of this case." The court then granted the town's motion for nonsuit in CV–09–4025677–S.

The court then considered CV–10–6006946–S, Faile's appeal from the 2010 decision of the board. The court asked LeClerc if he wanted to make a motion. LeClerc responded that he was moving for a nonsuit "based upon [Faile's] failure to have someone present at this morning's pretrial with ultimate authority to settle this matter, and also for not having all documents that will be entered into evidence, specifically the document evidencing one of the three airplane hangars had been sold."

Grocki asked the court if it wanted him to reiterate all of the arguments that he set forth for the previous matter. The court asked if they would be the same, and Grocki replied in the affirmative. The court then asked Grocki if he had brought the papers related to the sale of the hangar, and Grocki stated that he had electronic versions of everything with him, which he readily could access on his computer. The court chastised Grocki for not bringing "every piece of paper [he] intend[ed] to offer into...