Karanda v. Bradford

• Decision Date: 15 February 2022
• Docket Number: AC 43749
• Citation: 210 Conn.App. 703,270 A.3d 743
• Parties: Kimberly KARANDA v. Shelby BRADFORD
• Court: Connecticut Court of Appeals

210 Conn.App. 703

270 A.3d 743

Kimberly KARANDA

v.Shelby BRADFORD

AC 43749

Appellate Court of Connecticut.

Argued October 5, 2021

Officially released February 15, 2022

Erica A. Barber, for the appellant (plaintiff).

Kelly B. Gaertner, Cheshire, with whom, on the brief, was Carmine Annunziata, for the appellee (defendant).

Elgo, Suarez and Vertefeuille, Js.

ELGO, J.

The plaintiff, Kimberly Karanda, appeals from the judgment of the trial court denying her motion to open a judgment of nonsuit due to her noncompliance with a discovery order. The plaintiff claims that the court did not properly evaluate her motion pursuant to General Statutes § 52-212a and Practice Book § 17-43. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On March 14, 2016, the plaintiff and the defendant, Shelby Bradford, were involved in a motor vehicle collision on an on-ramp to Route 2 in Glastonbury. On March 22, 2018, the plaintiff brought an action alleging the defendant's negligence. On August 6, 2018, the defendant filed an answer and a claim for a jury trial. On August 15, 2018, the plaintiff filed a certificate of closed pleadings.

On February 13, 2019, the defendant filed a motion for an order of compliance pursuant to Practice Book § 13-14. The defendant alleged that the plaintiff had failed to respond to several interrogatories and requests for production and outlined in her motion a comprehensive list of materials that the plaintiff had not yet provided. On February 25, 2019, the court ordered the plaintiff to comply with the defendant's outstanding discovery requests "by March 22, 2019."

On March 28, 2019, the defendant filed two motions. The defendant first moved for the court to compel the plaintiff's deposition to take place on June 7, 2019, relying on the fact that trial was scheduled to begin on October 1, 2019, and the plaintiff's deposition already had been postponed twice.¹ The defendant also moved for a judgment of nonsuit against the plaintiff, pursuant to Practice Book § 13-14, on the ground that the plaintiff failed to comply with numerous discovery requests² in violation of the court's February 25, 2019 order. On April 14, 2019, the court granted the defendant's motion to compel the plaintiff's deposition on the requested date of June 7, 2019. Shortly thereafter, on April 29, 2019, the court ordered the plaintiff to fully comply with the defendant's discovery requests by May 17, 2019. The court noted that a "[f]ailure to fully comply" with the order "may result in the imposition of sanctions."

The defendant subsequently filed two additional motions for judgment of nonsuit. The first such motion, filed on May 23, 2019, relied in large part on the same grounds as the defendant's prior motion for nonsuit with respect to the plaintiff's failure to comply with the defendant's discovery requests. The defendant added that, although the plaintiff had filed two notices of compliance between that date and the court's April 29, 2019 order, the plaintiff still had not complied with a substantial portion of the defendant's requests. On June 17, 2019, the court scheduled argument on the defendant's May 23, 2019 motion for July 1, 2019. The defendant filed another motion for a judgment of nonsuit on June 19, 2019, on the ground that the plaintiff did not attend her deposition as ordered by the court on April 14, 2019. That motion was originally designated to be taken on the papers, but the court and the parties agreed that it would be considered together with the defendant's May 23, 2019 motion for nonsuit.

The court heard argument from the parties on those motions for nonsuit on July 1, 2019. The plaintiff initially argued that she continued to seek the requested records, and that nonresponsiveness on the part of her health care provider was to blame for the delay. In a colloquy with the plaintiff's counsel, the court emphasized that it "had entered an order not that you work on [complying with the discovery requests], but that you respond by a certain date and you didn't do that. ... I said you have until next date to get this done and you didn't get it done." When asked by the court why the plaintiff did not attend her June 7, 2019 deposition, the plaintiff's counsel conceded that he could not "really give an explanation for that." Citing the plaintiff's failure to appear at her deposition as ordered by the court and her failure to fully comply with the defendant's discovery requests, the court granted the defendant's motions for a judgment of nonsuit and dismissed the action.

On October 28, 2019, the plaintiff filed a motion to open the judgment. The plaintiff alleged, inter alia, that she was "ready, willing, and able to be deposed within the next [thirty] days" and that the materials sought by the outstanding discovery requests did not exist. In her November 4, 2019 objection to the plaintiff's motion, the defendant first argued that, because the plaintiff did not file her motion in compliance with General Statutes § 52-212, with an attached affidavit, within four months from the date that the judgment was rendered, the court did not have jurisdiction to consider the plaintiff's motion. The defendant further argued that, even if the court had jurisdiction, the plaintiff's motion did not demonstrate (1) the existence of a good cause of action by the time the judgment was rendered, and (2) that any mistake, accident, or other reasonable cause prevented her from complying with the court's orders. On November 12, 2019, the court denied the plaintiff's motion to open. The plaintiff filed a motion to reconsider, which the court denied, and this appeal followed.

Following the commencement of this appeal, the plaintiff filed a motion for rectification with the trial court, pursuant to Practice Book §§ 60-2, 61-10, 66-2, 66-3, and 66-5, "to determine the basis for the trial court's [November 12, 2019] [o]rder denying [the plaintiff's] motion to open the judgment of nonsuit." In granting the plaintiff's motion, the court explained that, "[a]lthough captioned and presented as a motion for rectification, the court construes the plaintiff's June 26, 2020 motion as a motion for articulation seeking the basis for the court's November 12, 2019 denial of the plaintiff's motion to open [the] judgment." The court then articulated the rationale behind its denial of the motion to open the judgment: "Th[is] court denied the plaintiff's motion to open [the] judgment for several reasons. The motion was not verified by oath, nor was it accompanied by an affidavit. Although the plaintiff subsequently filed an affidavit, because she delayed filing her motion until the end of the four month statutory period within which the motion had to be filed, the affidavit was filed after the statutory period expired. The motion to open [the] judgment was denied because it did not comply with the statutory requirements. ...

"Even if the affidavit had been timely filed, the contents of the affidavit failed to adequately establish a basis upon which the judgment should be reopened. [ Section 52-212 ] requires the verified motion or, in this case, the affidavit ‘[show] reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.’ ... Instead of ‘showing’ that the plaintiff had a good cause of action at the time judgment was entered, the affidavit baldly asserts that ‘the plaintiff has maintained a good cause of action.’ This is inadequate. ...

"The affidavit also did not establish that the plaintiff's failure to obey the court's orders that she comply with the defendant's discovery requests and appear at a deposition were due to ‘mistake, accident or other reasonable cause.’ The explanation advanced in her counsel's affidavit, that she ultimately determined that the records sought by the defendant did not exist, is belied by the fact that additional records were actually produced after judgment entered. Moreover, the fact that certain records did not exist should have been part of a response provided pursuant to the two prior orders of compliance issued by the court. The affidavit does not explain what, if any, efforts had been made to comply with the court's orders prior to the entry of judgment. The documents submitted with her November 25, 2019 motion to reconsider reflect only that a subpoena was served in an effort to obtain such records in October, 2019, three months after judgment entered. The affidavit also does not establish that the plaintiff failed to appear for her deposition, pursuant to the court's order, due to ‘mistake, accident or other reasonable cause.’ Counsel's affidavit states only that the ‘deposition did not happen due to an error in notice between the undersigned firm and the plaintiff.’ This reflects mere negligence on the part of counsel or the plaintiff and is not sufficient to establish a basis to [open] the judgment." (Citations omitted.)

On appeal, the plaintiff claims that the court erred as a matter of law in denying her motion to open the judgment. She claims that the court erred in applying the standard for opening judgments upon default or nonsuit set forth in § 52-212 as opposed to the standard for opening civil judgments as set forth in § 52-212a.³ We note that the plaintiff's motion before the court is captioned as a motion to open judgment of nonsuit, and, beyond referencing Practice Book § 17-4, she does not refer to any legal authority. The defendant, however, in her response to the plaintiff's motion to open, did object to the plaintiff's motion to open on the grounds that it did not comply with § 52-212. The defendant contends that the court analyzed the plaintiff's motion under the applicable statute and did not...