Misata v. Con-Way Transp. Services, Inc., No. 27625.

• Decision Date: 01 April 2008
• Docket Number: No. 27625.
• Court: Connecticut Court of Appeals
• Parties: Tracy MISATA et al. v. CON-WAY TRANSPORTATION SERVICES, INC., et al.

943 A.2d 537

106 Conn.App. 736

Tracy MISATA et al. v. CON-WAY TRANSPORTATION SERVICES, INC., et al.

No. 27625.

Appellate Court of Connecticut.

Submitted on Briefs January 3, 2008.

Decided April 1, 2008.

John F.X. O'Neill, West Hartford, filed a brief for the appellants (plaintiffs).

James V. Somers, Steven H. Malitz and Regen O'Malley, Hartford, filed a brief for the appellees (defendants).

FLYNN, C.J., and BEACH and ROBINSON, Js.

ROBINSON, J.

The plaintiffs, Tracy Misata and her minor daughter, Lauren Misata, appeal from the judgment of the trial court rendered in favor of the defendants, Con-Way Transportation Services, Inc., and John R. Martyn, Jr. On appeal, the plaintiffs claim that (1) the court improperly concluded that a discovery order was not complied with, (2) the parties did not receive notice that a judgment of nonsuit had been rendered (3) the court improperly denied the plaintiffs' motion for reconsideration of the denial of their motion to open the judgment of nonsuit and (4) the dismissal of the action constituted too harsh a result. We affirm the judgment of the trial court.

The following detailed procedural history is necessary for our resolution of the plaintiffs' appeal. The plaintiffs commenced their action on June 27, 2003, by way of a one count complaint. The plaintiffs alleged that Martyn, an employee of Con-Way Transportation Services, Inc., negligently operated a truck and collided with the plaintiffs' motor vehicle. The plaintiffs further claimed that they suffered injuries as a result of this negligence. In response, the defendants filed a motion for permission to file supplemental interrogatories, requesting that Tracy Misata provide "information concerning collateral source benefits and/or payments received by her in connection with [the plaintiffs'] claimed injuries." The court granted this motion in September, 2003.

On November 5, 2003, the defendants filed a motion for nonsuit, pursuant to Practice Book § 13-14,¹ as a result of the plaintiffs' failure to respond to the supplemental interrogatories. On February 2, 2004, the court conditionally granted this motion, stating that the motion was granted "unless full compliance is served, with no objections except as based on claims of privilege, by [February 20, 2004]." The court subsequently granted the plaintiffs' ex parte motion for an extension of time and ordered that the plaintiffs respond to the interrogatories by March 15, 2004.

The plaintiffs responded to the interrogatories; however, the defendants viewed the response as incomplete and inadequate and, accordingly, filed a motion for nonsuit on March 25, 2004. The plaintiffs objected four days later, but the court did not rule on this motion. The defendants filed another motion for nonsuit on December 16, 2004, which was not decided by the court. Approximately nine months later, the defendants filed a motion for a judgment of dismissal pursuant to Practice Book §§ 13-11, 13-14 and 13-15.

On November 14, 2005, the court held a hearing on the defendants' motion. At the outset, the court noted that a judgment of nonsuit² had been rendered on March 15, 2004.³ The plaintiffs' counsel indicated that he was unaware of the judgment of nonsuit. The court observed that the plaintiffs needed to address the entry of non-suit. The court also noted that all of the parties appeared to have been unaware of the nonsuit and inquired whether the defendants objected to opening the judgment of nonsuit. Counsel for the defendants acknowledged "a lack of clarity as to where the case stood procedurally" and objected to opening the judgment of nonsuit.

On December 28, 2005, the defendants filed a second motion for a judgment of dismissal. The plaintiffs responded by filing an objection to the defendants' motion and a "motion to reopen judgment of nonsuit" on January 27, 2006. The court denied the plaintiffs' motion because of their "failure to fully respond to discovery response by March 15, 2004. Responses were incomplete, e.g., 6, 10, 12, 13 and 23." On March 21, 2006, the plaintiffs filed a "motion for reconsideration to reopen judgment of nonsuit." The court denied this motion, stating: "[U]ntimely, no good reason given for entry of nonsuit or judgment or why counsel was unaware of [March 15, 2004] ruling. Discovery answers were equivocal, nonresponsive and inadequate for their purpose." This appeal followed.⁴

As a preliminary matter, we must resolve, due to the procedural posture of this case, whether we may consider the merits of the underlying judgment of nonsuit or whether our inquiry is restricted to whether the court abused its discretion in failing to open the judgment. See Ins. Co. of Pennsylvania v. Waterfield, 102 Conn. App. 277, 283, 925 A.2d 451(2007). Ordinarily, we would conclude that our review is limited to the question of whether the court abused its discretion in denying the plaintiffs' motion to open the judgment of nonsuit. Due to the unique circumstances of the present case, however, we conclude that the question of whether the court abused its discretion in denying the motion to open the judgment is inextricably intertwined with the underlying judgment of nonsuit.

The court rendered a judgment of nonsuit on March 15, 2004. Neither party, however, received notice of this judgment. Our review of the record does not reveal any indication that notice was sent to either party.⁵ It was not until the November 14, 2005 hearing that the plaintiffs were made aware of the existence of the judgment of nonsuit. See Segretario v. Stewart-Warner Corp., 9 Conn.App. 355, 360, 519 A.2d 76 (1986) ("[a] judgment of nonsuit is in fact rendered when the trial judge orders a nonsuit entered orally"). We conclude, therefore, that November 14, 2005, commenced the four month period⁶ within which the plaintiff was permitted to file a motion to open the judgment of nonsuit. See Federal Deposit Ins. Corp. v. Caldrello, 68 Conn.App. 68, 70-74, 789 A.2d 1005, cert. denied, 260 Conn. 903, 793 A.2d 1088, cert. denied, 537 U.S. 824, 123 S.Ct. 111, 154 L.Ed.2d 35 (2002). Accordingly, the plaintiffs' January 27, 2006 motion to open the judgment was timely before the trial court.

The plaintiffs chose to pursue the procedural option of filing a motion to open. Subsequently, they filed a motion for reconsideration of the denial of that motion.⁷ They did not file an appeal from the judgment of nonsuit within twenty days of the November 14, 2005 hearing.⁸ Additionally, the plaintiffs filed the motion to open more than twenty days after receiving notice of the judgment of nonsuit.⁹ On the appeal form, the plaintiffs indicated that they were appealing from the "[d]ismissal (nonsuit) of case for ... alleged failure to adequately in a timely manner answer ... requests for discovery." Furthermore, they have raised issues pertaining to both the underlying judgment of nonsuit and the motions to open and for reconsideration.¹⁰

It is well established in our jurisprudence that "[w]here an appeal has been taken from the denial of a motion to open, but the appeal period has run with respect to the underlying judgment, we have refused to entertain issues relating to the merits of the underlying case and have limited our consideration to whether the denial of the motion to open was proper. Tiber Holding Corp. v. Greenberg, 36 Conn.App. 670, 671, 652 A.2d 1063 (1995). When a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment. Altberg v. Paul Kovacs Tire Shop, Inc., 31 Conn.App. 634, 640, 626 A.2d 804 (1993). This is so because otherwise the same issues that could have been resolved if timely raised would nevertheless be resolved, which would, in effect, extend the time to appeal." (Emphasis added; internal quotation marks omitted.) Stephen v. Hoerle, 39 Conn.App. 253, 256-57, 664 A.2d 817, cert. denied, 235 Conn. 928, 667 A.2d 555 (1995); Conway v. Hartford, 60 Conn.App. 630, 635, 760 A.2d 974 (2000); Connecticut Savings Bank v. Obenauf, 59 Conn.App. 351, 354, 758 A.2d 363 (2000); Charbonneau v. Charbonneau, 51 Conn.App. 311, 312-13 721 A.2d 565 (1998), cert. denied, 247 Conn. 964, 724 A.2d 1125 (1999).

In the present case, the plaintiffs filed the motion to open more than twenty days after receiving notice of the judgment of nonsuit. In light of the well established precedent, they normally would be precluded from challenging the merits of the underlying judgment in this appeal.¹¹ Our review of the record, however, reveals that there had been no judicial determination that the plaintiffs had not complied with the discovery request until the court denied the motion to open. Specifically, the February 17, 2006 order in which the court stated that the motion to open was "[d]enied for the failure to fully respond to discovery response by March 15, 2004 [and that] [r]esponses were incomplete, e.g., 6, 10, 12, 13 and 23," was the first ruling by a judge of the Superior Court that the plaintiff had not responded fully to the discovery order. Furthermore, in ruling on the plaintiffs' motion for reconsideration, the court described the responses as "equivocal, nonresponsive and inadequate...." Simply put, it was not until February 17, 2006, and, in response to the plaintiffs' motion for reconsideration on April 17, 2006, that the court actually decided whether the plaintiffs' responses were sufficient. The court, therefore, was not only ruling on the motion to open but also the underlying basis of the entry of a judgment of nonsuit. Thus, in order for this court to determine whether the trial court abused its discretion¹² in denying the motion to open, we must also consider whether the basis for the nonsuit was proper.¹³

As we previously have noted, the court did not explain the basis for its...