Gionfrido v. Wharf Realty, Inc., 11200

Citation474 A.2d 787,193 Conn. 28
Decision Date24 April 1984
Docket NumberNo. 11200,11200
PartiesFrancis GIONFRIDO v. WHARF REALTY, INC., et al.
CourtSupreme Court of Connecticut

Edward J. Daly, Jr., Hartford, with whom, on the brief, was Joseph E. Fazzano, Hartford, for appellant (plaintiff).

Michael Feldman, Hartford, with whom, on the brief, was Michael F. Dowley, Middletown, for appellee (named defendant).


SPEZIALE, Chief Justice.

This is an appeal by the plaintiff from the trial court's dismissal of his case for failure to "appear to prosecute his cause." We find no error.

The plaintiff sued the named defendant (hereinafter the defendant) for alleged tortious conduct by three of its employees 1 in removing the plaintiff from a bar. On December 22, 1980, the plaintiff was nonsuited by the trial court, Edelberg J., for failure to comply with discovery. 2 The plaintiff's motion to open the judgment of dismissal 3 was denied by the trial court, Higgins, J., on February 10, 1981. Subsequently, the plaintiff again moved to open the judgment of nonsuit, which motion was granted by the trial court, Purtill, J., on April 20, 1981. 4

As early as October, 1981, the parties were aware that the case was marked ready and was on the trial court assignment list. On the afternoon of November 12, 1981, Thomas Lombardo, the plaintiff's attorney, was contacted by a clerk of the court and informed that the case would start the following day. On the morning of November 13, 1981, Lombardo spoke on the telephone with Judge Higgins and was informed by Judge Higgins that the case must begin later that morning or be dismissed. Lombardo and Kevin Dubay, another attorney with the firm representing the plaintiff, then drove to Middletown and were informed by Judge Higgins that the jury would be picked that day (November 13, 1981) and that the case would be going forward on Monday, November 16, 1981. The trial court, Higgins, J., noted that the plaintiff "previously received notice that you were in the top group of three or four cases assigned for trial." The jury panel was then sworn in and individual voir dire commenced. The trial court recessed for lunch at 1 p.m. and ordered the parties to return at 2 p.m. to continue with the jury selection.

At 2 p.m., neither the plaintiff nor his attorney was present although the defendant was ready to proceed. After a fruitless search by the sheriff for the plaintiff or his attorney, at 2:20 p.m. the trial court, Higgins, J., dismissed the case for failure of the plaintiff to "appear to prosecute his cause." The plaintiff's counsel, Dubay, arrived at the courthouse at 2:26 p.m. Dubay stated that he had returned to his law office in Hartford during the recess and that he had lost track of time while attempting to "redate subpoenas, contact witnesses and insure the availability of expert medical witnesses." Further, Dubay stated that traffic conditions contributed to his delay in returning to the Middletown courthouse.

The plaintiff's motion to open the judgment of dismissal for failure to prosecute was denied on December 11, 1981, by the trial court, Higgins, J. The plaintiff appealed from the judgment of dismissal.

The plaintiff contends that the trial court abused its discretion in dismissing the case on November 13, 1981. The plaintiff's attorney was required by order of the trial court to appear when the court reconvened at 2 p.m. to continue with jury selection. He failed to do so. Practice Book § 251 authorizes the trial court to dismiss an action "[i]f a party shall fail to prosecute an action with reasonable diligence." 5

The trial court, Higgins, J., was confronted by a history of delay in this case. We have noted the responsibility of the trial court to process cases in a timely and efficient manner: "Overcrowded dockets have become a major problem challenging the ability of the courts of this state and elsewhere to dispense justice. It is well known that justice delayed is justice denied. In order to fulfill our responsibility of dispensing justice we in the judiciary must adopt an effective system of caseflow management. Caseflow management is based upon the premise that it is the responsibility of the court to establish standards for the processing of cases and also, when necessary, to enforce compliance with such standards. Our judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system. To reduce delay while still maintaining high quality justice, it is essential that we have judicial involvement in managing cases.

"Caseflow management places new demands on our already overworked judges because the judge must actively establish and enforce the pace of litigation coming before the court, rather than allowing the parties to do so. Judges must be firm and create the expectation that a case will go forward on the specific day that it is assigned. In order to dispose of our cases in a fair, timely, and efficient manner, everyone involved must be present on time, prepared, and ready to go forward. Because both courtrooms and judges are necessarily limited in number, burgeoning caseloads require that efficient use be made of the available space and judicial time. Careful calendar control is one proven method of increasing the number of case dispositions in the system." In re Mongillo, 190 Conn. 686, 690-91, 461 A.2d 1387 (1983). In this case, the failure of the plaintiff's counsel to appear on time not only tied up valuable courtroom space, but it also inconvenienced the trial judge, opposing counsel, and the entire panel of jurors awaiting voir dire, all of whom were present at 2 p.m.

"We are not insensitive to the apparent harshness of any decision by a court that may be perceived as punishing the client for the transgressions of his or her attorney. Although our adversarial system requires that the client be responsible for acts of the attorney-agent whom the client has freely chosen; Link v. Wabash R. Co., 370 U.S. 626, 633-34, 634 n. 10, 82 S.Ct. 1386 [1390-91, n. 10], 8 L.Ed.2d 734, reh. denied, 371 U.S. 873, 83 S.Ct. 115, 9 L.Ed.2d 112 (1962); the court is not without the power to take action directly against the errant attorney. It is an inherent power of the court to discipline members of the bar, and ' "to provide for the imposition of reasonable sanctions to compel the observance of its rules." Stanley v. Hartford, 140 Conn. 643, 648, 103 A.2d 147 (1954).' In re Mongillo, [supra]. Appropriate sanctions include, but are not limited to, fining the attorney in accordance with General Statutes § 51-84; In re Mongillo, supra [190 Conn.], 686 ; or 'assess[ing] costs against an attorney who fails to appear at a scheduled trial [or other hearing] without having obtained a timely continuance.' Beit v. Probate and Family Court, 385 Mass. 854, 855, 434 N.E.2d 642 (1982)." Thode v. Thode, 190 Conn. 694, 698-99, 462 A.2d 4 (1983). Here, the trial court chose the most powerful sanction of dismissal rather than a more moderate sanction directed to the attorney himself.

We recognized that dismissal is a harsh sanction. 6 Under the circumstances of this case, however, we would do a disservice to the great majority of attorneys, who are conscientious, and to the litigants of this state if we unduly interfered with the trial court's judicious attempts at caseflow management. We conclude that the trial court did not abuse its sound discretion in dismissing the plaintiff's action for failure to prosecute.

There is no error.

In this opinion the other Judges concurred.

1 The plaintiff's complaint also named as defendants three employees of the named defendant whose actual identities the plaintiff did not know. On November 13, 1981, the trial court, Higgins, J., rendered a default judgment "against John Doe, Richard Roe, and Paul Poe for failure to appear and defend the action."

2 Practice Book § 231 provides in relevant part: "If any party has failed to answer interrogatories or to answer them fairly, or has intentionally answered them falsely or in a manner calculated to mislead, or has failed to respond...

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