Goody v. Bedard, 100620 CTCA, AC 42259

Docket Nº:AC 42259
Opinion Judge:ELGO, J.
Party Name:ROBERT GOODY, ADMINISTRATOR (ESTATE OF RICHARD GOODY) v. MICHAEL J. BEDARD ET AL.
Attorney:Peter G. Billings, for the appellant (plaintiff). Joseph M. Busher, Jr., for the appellee (defendant Flori Schmoegner).
Judge Panel:Alvord, Elgo and Devlin, Js.
Case Date:October 06, 2020
Court:Appellate Court of Connecticut
 
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ROBERT GOODY, ADMINISTRATOR (ESTATE OF RICHARD GOODY)

v.

MICHAEL J. BEDARD ET AL.

No. AC 42259

Court of Appeals of Connecticut

October 6, 2020

Argued February 18, 2020.

Procedural History

Action to recover damages for, inter alia, the defendants' alleged negligence, and for other relief, brought to the Superior Court in the judicial district of New London, where the named defendant was defaulted for failure to appear; thereafter, the plaintiff filed a motion for an extension of time; subsequently, the court, Swienton, J., granted the motion for summary judgment filed by the defendant Flori Schmoegner and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.

Peter G. Billings, for the appellant (plaintiff).

Joseph M. Busher, Jr., for the appellee (defendant Flori Schmoegner).

Alvord, Elgo and Devlin, Js.

OPINION

ELGO, J.

The plaintiff, Robert Goody, administrator of the estate of Richard Goody (decedent), appeals from the summary judgment rendered by the trial court in favor of the defendant Flori Schmoegner.1 On appeal, the plaintiff claims that the court erred by (1) effectively denying his motion for an extension of time to conduct additional discovery when it rendered summary judgment, and (2) determining that the defendant did not owe a duty of care to the decedent in rendering summary judgment. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts, viewed in the light most favorable to the plaintiff, and procedural history are relevant to our resolution of this appeal. ‘‘The defendant . . . owned the residence located at 8 Illinois Court, Oakdale . . . where she lived with . . . Bedard, her ‘husband, boyfriend and/or friend.' . . . On February 9, 2016, the [decedent] . . . was invited to the premises in order to consume drugs. . . . Around 7 p.m. on that day, the [decedent] became unresponsive and could not breathe. Bedard waited until 8:32 p.m. to seek medical assistance, and, when the emergency medical personnel arrived at the Illinois Court premises, the [decedent] was unconscious and unresponsive. He was transported to the emergency room at Backus Hospital, where he received Narcan, was placed on life support and received additional medical treatment. The [decedent] was then transferred to Yale New Haven Hospital where he received critical care until his death on February 11, 2016. . . .

‘‘In count four [of his complaint] against the defendant . . . the plaintiff alleges that the injuries and death of [the decedent] were caused by the negligence of [the defendant] in that she allowed Bedard to live on the premises, she knew or should have known that drugs were being used on the premises and failed to take any action to remove the drugs from the premises. In addition, she failed to take any action to save the [decedent], failed to warn or protect his safety, failed to provide emergency medical personnel with information regarding the decedent's activities, and failed to exercise control over the premises.

‘‘The defendant . . . has provided an affidavit in support of her motion for summary judgment which states that she did not invite [the decedent] to her residence, that Bedard did not ask permission to have [the decedent] to her home, that she was not at home at any time [the decedent] was at the premises, and [that] she did not learn of his presence at her home until February 10, 2016. She was at work while [the decedent] was at her premises.

‘‘On February 21, 2018, the defendant . . . filed her motion for summary judgment. On June 18, 2018, the plaintiff filed an ‘initial' memorandum in opposition to the defendant's motion for summary judgment. He has indicated that he filed for an extension of time in order to respond to the motion for summary judgment, which motion was pending before the court. The court docket indicates that he filed a motion for [an] extension of time on March 20, 2018, seeking until June 1, 2018, to respond to the motion for summary judgment, which motion for [an] extension of time was granted over objection. . . . On June 14, 2018, the plaintiff filed a second motion for [an] extension of time, seeking until September 1, 2018, to respond, which motion was granted on June 18, 2018. . . .

‘‘The plaintiff filed his ‘initial' response on June 18, 2018. On September 13, 2018, a third motion for [an] extension of time to respond was filed by the plaintiff, the defendant filed an objection to the motion, and the court heard oral argument on the motion for summary judgment on September 17, 2018.'' (Citations omitted.) On October 3, 2018, the trial court granted the defendant's motion for summary judgment and rendered summary judgment in her favor. The plaintiff subsequently filed this appeal.

I

The plaintiff first claims that the court improperly denied his motion for an extension of time to respond to the motion for summary judgment. Specifically, he argues that the court abused its discretion because he had ‘‘demonstrated a compelling reason why the additional time was needed to conduct discovery and the steps [his] counsel had already taken for that purpose.'' We disagree.

The following additional facts are relevant to our resolution of this claim. The plaintiff submitted, and the court accepted, a scheduling order in which all dispositive motions were to be filed by March 15, 2018. Trial was scheduled for November 6, 2018. The defendant filed her motion for summary judgment on February 21, 2018. On March 20, 2018, the plaintiff filed a motion for an extension of time-to June 1, 2018-to respond to the defendant's motion for summary judgment. Over objection by the defendant, the court granted the plaintiff's motion. On June 14, 2018, two weeks after his requested deadline date, the plaintiff filed a second motion for an extension of time requesting that the deadline to respond again be extended, to September 1, 2018. That motion also was granted by the court. On June 18, 2018, the plaintiff filed an initial response to the defendant's motion for summary judgment. On September 13, 2018, nearly two weeks after his second deadline date and four days before the rescheduled date for oral argument on the motion for summary judgment, the plaintiff filed his third motion for an extension of time. The defendant filed an objection. Oral argument on the motion for summary judgment went forward as scheduled on September 17, 2018, at which time the plaintiff stated that he needed more time to conduct discovery. The trial court issued its memorandum of decision on October 3, 2018, granting the defendant's motion for summary judgment and did not act on the plaintiff's third motion for an extension of time.

We begin by setting forth the applicable standard of review. Practice Book § 17-45 provides in relevant part: ‘‘(a) A motion for summary judgment shall be supported by appropriate documents, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and other supporting documents. (b) Unless otherwise ordered by the judicial authority, any adverse party shall file and serve a response to the motion for summary judgment within forty-five days of the filing of the motion, including opposing affidavits and other available documentary evidence. . . .'' Practice Book § 17-47 provides: ‘‘Should it appear from the affidavits of a party opposing the motion that such party cannot, for reasons stated, present facts essential to justify opposition, the judicial authority may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.'' ‘‘A trial court's adjudication of a motion for a continuance pursuant to Practice Book § 17-47 is reviewed for an abuse of discretion.'' Chase Home Finance, LLC v. Scroggin, 194 Conn.App. 843, 860, 222 A.3d 1025 (2019). ‘‘Under the abuse of discretion standard for review, [an appellate court] will make every reasonable presumption in favor of upholding the trial court's ruling and only upset it for a manifest abuse of discretion.'' (Internal quotation marks omitted.) Perez v. D & L Tractor Trailer School, 117 Conn.App. 680, 701-702, 981 A.2d 497 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010).

On appeal, the plaintiff argues that the court abused its discretion in denying his third motion for an extension of time because additional time was needed to obtain documents and to perform depositions to contradict the defendant's affidavit and to respond to her motion for summary judgment. The plaintiff claims that those documents, specifically Bedard's medical records and depositions of other witnesses, would demonstrate that the defendant was aware of Bedard's ‘‘numerous stints in drug and alcohol rehabilitation'' and that the defendant ‘‘could have [been] present'' at the time of the decedent's death.

As we discuss in part II of this opinion, however, the plaintiff has not demonstrated how mere knowledge of Bedard's drug addiction would have created an issue of material fact with respect to the defendant's duty to the decedent. In addition, the plaintiff made reference in his motion to unnamed witnesses with nothing more specific than the claim that they were ‘‘further witnesses to the events at issue . . . .'' In his brief before this court, the plaintiff insinuates that the deposition testimony of those further witnesses would support his contention that the defendant could have been present at the time of the decedent's death. Although the plaintiff did not provide to the court the affidavits required pursuant to Practice Book § 17-47, the court specifically asked how this additional discovery sought by the...

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