Millbrook Owners Assn., Inc. v. Hamilton Standard, (SC 16358)

CourtSupreme Court of Connecticut
Writing for the CourtBorden, Norcott, Katz, Palmer and Vertefeuille, Js.
Citation257 Conn. 1,776 A.2d 1115
Docket Number(SC 16358)
Decision Date24 July 2001

257 Conn. 1
776 A.2d 1115


(SC 16358)

Supreme Court of Connecticut.

Argued December 7, 2000.

Officially released July 24, 2001.

Borden, Norcott, Katz, Palmer and Vertefeuille, Js.

257 Conn. 2
Kenneth J. Bartschi, with whom were Susan M. Cormier and, on the brief, Linda W. Alderman and Myles H. Alderman, Jr., for the appellant (plaintiff)

Robert R. Simpson, with whom were Elizabeth C. Barton and, on the brief, Barbara A. Frederick, for the appellee (named defendant).

Diane W. Whitney, with whom, on the brief, were Peter Knight and Patricia A. Shaw, for the appellee (defendant Alcoa, Inc.).

257 Conn. 3
Andrew J. O'Keefe, with whom was Kathryn M. Cunningham, for the appellee (defendant Anything Printed)

Anthony B. Corleto and Lori A. Eaton filed a brief for the appellee (defendant Broad Brook Center Associates).



The dispositive issue in this appeal1 is whether the trial court abused its discretion in dismissing the plaintiffs action for violating a certain discovery order of the court. On September 14, 1998, the trial court entered a certain discovery order against the plaintiff, Millbrook Owners Association, Inc., providing that a judgment of dismissal would enter unless, within a specified period of time, the plaintiff filed certain disclosures and complied with certain other orders of the court. On October 26, 1998, the court found that the plaintiff had failed to comply with the disclosure order and, accordingly, rendered judgment dismissing the action. We conclude that, under the particular circumstances of this case, the court abused its discretion and, accordingly, we reverse the judgment of dismissal.

This case has followed a tangled procedural path in the trial court.2 In December, 1995, the plaintiff, a condominium owners association that operates the Millbrook Condominiums in Broad Brook, brought this action against the defendants,3 claiming reimbursement

257 Conn. 4
for losses allegedly caused by contamination of the soil and groundwater of the real property on which certain of the condominiums are located. The issues in this appeal have their genesis in a deposition of Richard Ryan, a former employee of the named defendant, Hamilton Standard, taken by the plaintiff on July 22, 1997, and August 15, 1997

Before the deposition began on July 22, the defendants objected to the presence at the deposition of David Lis, who was not a party to the action. Upon the plaintiffs representation that Lis worked for Apex Environmental, Inc., which was acting as the plaintiffs expert, and that the plaintiff formally would disclose Lis as an expert witness4 within thirty days, the defendants permitted Lis to remain in the room for the deposition of Ryan. The deposition continued on August 15, when Garry Jacobsen,5 another employee of Apex Environmental, Inc., was in attendance. The defendants objected to his attendance, but permitted Jacobsen to

257 Conn. 5
attend the deposition upon the plaintiffs specific representation that, within the same thirty day period, the plaintiff would disclose Jacobsen as an expert pursuant to Practice Book § 13-4 (4),6 which governs disclosure of experts whom parties expect to call to testify at trial.

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When the plaintiff had not filed the disclosures as to Lis and Jacobsen by August 20, 1997, the defendants moved to compel disclosure. On September 29, 1997, the court, Teller, J., granted the motion without argument, and ordered the plaintiff to pay $250 in costs to the defendants.7 The plaintiff moved for reargument on that motion.8 Judge Teller granted reargument and, on November 3, 1997, reaffirmed his ruling on the motion to compel.

By the time of the trial court's reaffirmation of its ruling on November 3, 1997, however, the plaintiff had determined that Lis and Jacobsen would not testify at trial. On November 17, 1997, therefore, the plaintiff filed a "Disclosure of David Lis and Gar[r]y Jacobs[e]n As Experts." This disclosure provided in relevant part:

257 Conn. 7
"Pursuant to this Court's order of November [3], 1997, and Practice Book [§ 13-4 (4)] ...." (Emphasis added.) It also, however, explained the then current status of Lis and Jacobsen as experts, stated that the plaintiff had "no present expectation of calling either of [them] as an expert witness at the trial in this case," and stated further that Lis and Jacobsen were "experts for the plaintiff only as defined by Practice Book [§ 13-4 (2)]."9 (Emphasis added.) Thus, although it purported to disclose them pursuant to § 13-4 (4), it made clear that they were in fact experts, not under § 13-4 (4), but under § 13-4 (2), which governs disclosure of experts whom parties have retained in preparation for litigation but whom they do not expect to call to testify at trial. See
257 Conn. 8
footnote 6 of this opinion. The parties then scheduled depositions of Lis and Jacobsen for December 23 and 24, 1997, but those depositions were canceled by the attorney for the defendant Anything Printed, as a result of which their depositions remained subject to rescheduling.

Meanwhile, on December 12, 1997, the case was dismissed under the dormancy program, despite the plaintiffs request for an exemption and the lack of any objection to an exemption by the defendants. On April 27, 1998, over the objections of the defendants, the dismissal was vacated and the case was restored to the docket.

On May 6, 1998, Hamilton Standard moved to dismiss the case because the plaintiff had not disclosed Lis and Jacobsen pursuant to § 13-4 (4).10 The plaintiff objected to the motion to dismiss, asserting that, "[a]s the undersigned has advised [Hamilton Standard], at this time... Lis and Jacobsen have been retained by the Plaintiff to interpret reports submitted by [Hamilton Standard's] consultants but not as witnesses for trial."11 (Emphasis in original.)

257 Conn. 9
Thereafter, on May 20, 1998, the case was transferred to the complex litigation docket. The case subsequently was assigned to the court, Aurigemma, J. The motion to dismiss was heard by Judge Aurigemma on September 14, 1998. At the conclusion of the hearing, the court entered a conditional order of dismissal. On September 18, 1998, the plaintiff filed what it regarded as a compliance with the court's conditional order of dismissal. Thereafter, the defendants renewed their motion to dismiss, and the matter came before the court on October 26, 1998. At the conclusion of the hearing, the court rendered judgment dismissing the action. This appeal followed. We discuss in detail in part III of this opinion the colloquies that occurred at both the September 14 and October 26, 1998 hearings, and the plaintiffs intervening filing on September 18, 1998.12


We first set out the general jurisprudential background of the issues, and the various rules of practice involved in this case. One source of the trial court's authority to impose sanctions is the court's inherent power. We have long recognized that, apart from a specific rule of practice authorizing a sanction, "the trial court has the inherent power to provide for the imposition of reasonable sanctions, to compel the observance of its rules. Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 33, 474 A.2d 787 (1984); Stanley v. Hartford, 140 Conn. 643, 648, 103 A.2d 147 (1954)." Jaconski v. AMF, Inc., 208 Conn. 230, 232-33, 543 A.2d 728 (1988). Our trial courts have "the inherent authority to impose sanctions against an attorney and his client for a course of claimed dilatory, bad faith and harassing litigation

257 Conn. 10
conduct, even in the absence of a specific rule or order of the court that is claimed to have been violated." (Internal quotation marks omitted.) CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 393, 685 A.2d 1108 (1996), overruled in part on other grounds, State v. Salmon, 250 Conn. 147, 154-55, 735 A.2d 333 (1999); see also Fattibene v. Kealey, 18 Conn. App. 344, 358-60, 558 A.2d 677 (1989).

In addition, our rules of practice, adopted by the judges of the Superior Court in the exercise of their inherent rule-making authority; Fattibene v. Kealey, supra, 18 Conn. App. 356; General Statutes § 52-2913 also provides for specific instances in which a trial court may impose sanctions. For example, Practice Book § 13-14 (a)14 provides that, in general terms, if a party fails to

257 Conn. 11
comply with certain discovery obligations, the court "may, on motion, make such order as the ends of justice require," including entry of an order establishing as a fact the matters in question, prohibiting the entry into evidence of designated matters, entry of a default, nonsuit or dismissal, and an award of costs and attorney's fee. Furthermore, Practice Book § 13-4 (4); see footnote 6 of this opinion; provides that, in general terms, if a party fails timely to disclose the name and substance of the opinion of an expert whom the party "expect[s] to call [as] an expert witness at trial," the court may, "upon motion ... preclude such testimony...."


With this background in mind, we turn to the plaintiffs specific claims. We first consider the plaintiff's claim that the trial court lacked authority to dismiss the case because: (1) the plaintiff had no duty to disclose its expert witnesses under § 13-4 (4) before the pleadings were closed; and (2) § 13-4 (4) limits the available sanctions for improper disclosure regarding such witnesses to the exclusion of their testimony. We disagree.

This claim rests on the premise that the trial court, in dismissing the action, acted pursuant to § 13-4 (4). Thus, the first aspect of the plaintiffs claim is based on the textual requirement that the disclosure be accomplished "within a reasonable time prior to trial...." Practice Book § 13-4 (4). The plaintiff contends that this temporal provision means that no such disclosure may be required at least until the pleadings are closed. The...

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