Opinion
HHDCV176082031S
10-05-2018
Alfred WEISBRICH v. EVERSOURCE ENERGY aka The Connecticut Light and Power
UNPUBLISHED OPINION
OPINION
ROBERT B. SHAPIRO, JUDGE TRIAL REFEREE
The defendant’s motion for nonsuit (# 106) appeared as a take papers matter on the Short Calendar for October 1, 2018. The defendant seeks the entry of a nonsuit based on the plaintiff’s failure to appear for a court-ordered arbitration. The plaintiff filed an objection (# 107), to which the defendant replied (# 108). After consideration of the parties’ presentations and arguments, the court issues this memorandum of decision.
This personal injury action concerns the plaintiff’s claims of negligence arising from his alleged fall from his lawn mower. The plaintiff alleges he was injured when he was thrown from his lawn mower after it struck an anchor bolt for a pole which was placed on the rear of his property and which was managed and controlled by the defendant. See complaint.
Pursuant to General Statutes § 52-549u and by order dated January 17, 2018, the court scheduled a court arbitration for August 17, 2018. In such an arbitration, "[t]he arbitrator’s decision, however, is not binding on the parties and does not limit either party’s access to a trial ... [A] party that participated in nonbinding arbitration may appeal from the arbitrator’s decision by requesting a trial de novo, in which case the arbitrator’s decision becomes null and void." (Citations omitted.) Allstate Ins. Co. v. Mottolese, 261 Conn. 521, 529, 803 A.2d 311 (2002).
Section 52-549u provides, in relevant part, "the judges of the Superior Court may make such rules as they deem necessary to provide a procedure in accordance with which the court, in its discretion, may refer to an arbitrator, for proceedings authorized pursuant to this chapter, any civil action in which in the discretion of the court, the reasonable expectation of a judgment is less than fifty thousand dollars exclusive of legal interest and costs and in which a claim for a trial by jury and a certificate of closed pleadings have been filed. An award under this section shall not exceed fifty thousand dollars, exclusive of legal interest and costs."
The defendant assert that its counsel appeared at court on August 17, 2018 with witnesses prepared to go forward with the arbitration but neither the plaintiff nor his counsel appeared. It argues that a nonsuit is warranted since the court order scheduling the arbitration clearly states that "Failure to appear will result in dismissal or default."
The plaintiff’s counsel’s affidavit, which accompanied his objection, states that the parties agreed to submit the matter to a private arbitrator and were in the process of scheduling an arbitration. He also avers that there was a miscommunication between counsel and each thought the other would cancel the court "mediation." See plaintiff’s counsel’s affidavit, ¶ 8. He also states that, on the morning of August 17, 2018, he was in the waiting room of a hospital in New Haven after providing transportation there to a friend and neighbor for radiation treatment. In paragraph 10, he states that he "made an unintentional error and has apologized to defense counsel."
In reply, defense counsel disputes various assertions by plaintiff’s counsel. She avers that there was no agreement to private arbitration, there was no agreement to cancel the court-ordered arbitration, and that she did not inform the plaintiff’s counsel that the defendant would file a motion for a continuance of the August 17, 2018 arbitration. She argues that the defendant was prejudiced by spending hours preparing for the arbitration and by appearing in court with witnesses prepared to proceed.
In addition, the defendant cites Practice Book § 17-19, which states, "If a party fails to comply with an order of a judicial authority or a citation to appear or fails without proper excuse to appear in person or by counsel for trial, the party may be nonsuited or defaulted by the judicial authority." As an alternative to entering a nonsuit, the defendant asserts that the court should issue a finding in its favor on the merits since the plaintiff failed to present any evidence at the scheduled arbitration and failed to meet his burden relative to the allegations of the complaint.
"[A] court may, either under its inherent power to impose sanctions in order to compel observance of its rules and orders, or under the provisions of [Practice Book] § 13-14, impose sanctions, including the sanction of dismissal." Millbrook Owners Association, Inc. v. Hamilton Standard, 257 Conn. 1, 14, 776 A.2d 1115 (2001). "The decision to enter sanctions ... and, if so, what sanction or sanctions to impose, is a matter within the sound discretion of the trial court." (Internal quotation marks omitted.) D’Ascanio v. Toyota Industries Corp., 309 Conn. 663, 671, 72 A.3d 1019 (2013).
"[T]he court’s discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court ... Therefore, although dismissal of an action is not an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court’s authority ... the court should be reluctant to employ the sanction of dismissal except as a last resort." (Citations omitted; internal quotation marks omitted.) Ridgaway v. Mount Vernon Fire Ins. Co., 328 Conn. 60, 71, 176 A.3d 1167 (2018) (citing Millbrook Owners Association, Inc. v. Hamilton Standard, supra, 257 Conn. 16-17).
"In Millbrook, this court explained that a trial court properly exercises its discretion in imposing a sanction for a violation of a court order when (1) the order to be complied with is reasonably clear, (2) the record establishes that the order was in fact violated, and (3) the sanction imposed is proportionate to the violation." Ridgaway v. Mount Vernon Fire Ins. Co., supra . Concerning "proportionality," Ridgaway clarified that "rather than establishing a different standard for nonsuit in the context of a discovery sanction, this court articulated in Millbrook a term that provides more meaningful guidance regarding the exercise of discretion that applies to all sanctions of nonsuit." Id., 72.
Factors relevant to consideration of proportionality include "the nature and frequency of the misconduct, notice of the possibility of a nonsuit, lesser available sanctions, and the plaintiff’s participation in or knowledge of the misconduct." Id., 73.
The "appellate courts have upheld the imposition of a nonsuit when there is evidence of repeated refusals to comply with a court order." Id. The Supreme Court also noted that "courts in other jurisdictions have concluded that a single act could warrant nonsuit or dismissal if the act is sufficiently egregious, particularly when the improper conduct involves the perpetration of a deception on the court." Id., 74. The Supreme Court "has refused to uphold a sanction of nonsuit when there were available alternatives to dismissal that would have allowed a case to be heard on the merits while ensuring future compliance with court orders." Id., 75.
"Whether the misconduct was solely attributable to counsel and not to the party also has been a factor in assessing whether a less severe sanction than a nonsuit or dismissal should have been ordered." Id. "[I]n assessing proportionality, a trial court must consider the totality of the circumstances, including, most importantly, the nature of the conduct itself." Id., 76.
Here, as to the first two Millbrook factors, the court’s order scheduling the arbitration was reasonably clear, and provided notice to the plaintiff of the consequences for failure to appear; and the record establishes that the order was in fact violated.
The fact that the order stated that "[f]ailure to appear will result in dismissal or default," is not dispositive. Such an order is not self-executing. See GMAC Mortg., LLC v. Demelis, 181 Conn.App. 101, 106, 186 A.3d 1210, cert. denied, 329 Conn. 903, 184 A.3d 760 (2018). Rather, the court "retain[s] the jurisdiction and discretion to decide not to impose the sanction of dismissal ... consistent with the direction by our Supreme Court that the court’s discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court." (Internal quotation marks omitted.) Id., 108.
As to the third Milibrook factor, concerning "proportionality," in the present case, the failure to comply with the court’s order involved a single instance. Plaintiff’s counsel has provided an explanation for the failure to appear. He has acknowledged making a mistake. There is no evidence that conduct of the plaintiff himself was involved. In addition, there has been no showing of a deliberate, contumacious or unwarranted disregard for the court’s authority. See Ridgaway v. Mount Vernon Fire Ins. Co., supra, 328 Conn. 71. The conduct has not been shown to involve the perpetration of a deception on the court. See id., 74. No pattern of misconduct has been shown.
The alternative to nonsuit proposed by the defendant, a finding in its favor on the merits, is not a lesser available sanction, since it would be the functional equivalent of a nonsuit. It would not secure for the plaintiff his day in court. See id., 71. The defendant has not sought any other sanction. It also has not made a showing as to why other sanctions which could be imposed if warranted would not be adequate to address the conduct at issue.
Under these circumstances, the court concludes that the sanction of nonsuit would not be proportionate to the conduct at issue and is not warranted as a last resort. See Ridgaway v. Mount Vernon Fire Ins. Co., supra, 328 Conn. 71.
For the reasons stated above, in the exercise of the court’s discretion, the motion for nonsuit is denied.