Trumbull/Atwood Association et al. v. Stonington Water Street Associates et al. (2011)

MEMORANDUM OF DECISION

This matter is before the court concerning the defendants Stonington Water Street Associates, LLC (SWSA), Clearwater Associates, LLC, Stonington Acquisitions, LLC, and Charles Mallory's (defendants) motions to modify the scheduling order (# 184) and to implead (# 185) (motions).   The plaintiffs, Trumbull/Atwood Association, Inc. and Stonington Commons Community Association, filed objections (# # 191, 192).   The court has considered the parties' submissions concerning the motions.

I

Background

The return date in this matter was April 29, 2008, almost three years ago.   This action concerns a redevelopment of property located in Stonington, Connecticut into residential condominiums, town homes, and commercial space (project) by the owner, SWSA. The plaintiff's allege numerous causes of action arising out of alleged defects, inadequacies, and omissions in the construction of the project.

The defendants seek to implead three additional third-party defendants, AGWJ, LLC, formerly known as A.W. Construction, LLC (A.W.Construction) (windows installer);  Crocker Architectural Sheet Metal Co., Inc. (Crocker) (roofing subcontractor);  and Grande Masonry, LLC (Grande) (masonry contractor).   The defendants assert that these proposed third-party defendants are or may be liable to SWSA for all or part of the plaintiffs' claims against SWSA.

In September 2009, this action was transferred to the Complex Litigation Docket.   After the transfer, at the initial status conference, which was held in October 2009, the parties informed the court that additional defendants would need to be impleaded into the case.

On January 26, 2010, the court issued orders granting permission to conduct out of state depositions of Grande and Crocker.   See # # 139.86, 140.86.

On March 17, 2010, counsel for the parties attended a third status conference, where they agreed to a full schedule for the matter and a scheduling order was issued on that date.   See plaintiffs' Exhibit E. Though the court was advised that time was needed to bring additional parties into the case, the parties agreed that the pleadings would be closed by December 31, 2010.   This deadline was more than nine months later, and more than two-and-a-half years after the return date.   That was the deadline for closing the pleadings as to all parties, including original plaintiff's and defendants, and any third-party defendants.   Only one deadline was established for closing the pleadings.

In addition, according to the scheduling order, written discovery is to be completed about one month from now, by May 2, 2011.   July 1, 2011 is the deadline for any party with an affirmative claim to disclose their expert witnesses.   Other deadlines for discovery follow thereafter.

Jury selection in this matter is scheduled to begin on August 20, 2012 and trial is scheduled to commence on September 4, 2012.   The parties estimate that the presentation of evidence would last for twenty to twenty-five days.

The defendants' motions to implead other third-party defendants were granted in April 2010.   See# # 153.86, 155.86.

Although the scheduling order required that the pleadings be closed by December 31, 2010, the defendants did not file their current motion to implead, which is accompanied by extensive proposed third-party complaints, until February 10, 2011, over five weeks later.

Additional references to the background of this matter are set forth below.

II

Discussion

The defendants' motions are premised on General Statutes § 52–102a(a) and Practice Book § 10–11.  Section 52–102a(a) provides, “[a] defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him.   The motion may be filed at any time before trial and permission may be granted by the court if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action nor work an injustice upon the plaintiff or the party sought to be impleaded.”  Practice Book § 10–11(a) contains similar language.

Section 52–102a “furthers the salutary purpose of encouraging parties to consolidate the litigation flowing from a given factual circumstance into a single judicial proceeding thereby avoiding multiplicity of actions.”   Malerba v. Cessna Aircraft Co., 210 Conn. 189, 195, 554 A.2d 287 (1989).   A defendant does not have a statutory right to implead a third party;  “the statute commits the decision of such motions to the sound discretion of the trial court.”  Cupina v. Bernklau, 17 Conn.App. 159, 164, 551 A.2d 37 (1988).

As to motions to modify scheduling orders, three factors have been identified for consideration:  whether good cause has been shown;  whether there is prejudice to an opposing party;  and whether modification would necessitate a lengthy continuance of the trial date.   See DiFederico v. Sikorsky Financial Credit Union, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 05 4006583 (January 8, 2008, Kochiss Frankel, J.) (44 Conn.L.Rptr. 772).

“The court has wide latitude in docket control and is responsible for the efficient and orderly movement of cases.”  Daily v. New Britain Machine Co., 200 Conn. 562, 574, 512 A.2d 893 (1986).

“The court's scheduling orders are essential to the fair and efficient management of cases.   As the Appellate Court recently reiterated in McVerry v. Charash, 96 Conn.App. 589, 600, 901 A.2d 69, cert. denied, 280 Conn. 934, 909 A.2d 961 (2006), ‘[o]vercrowded dockets have become a major problem challenging the ability of the courts of this state and elsewhere to dispense justice.   It is well known that justice delayed is justice denied.   In order to fulfill our responsibility of dispensing justice we in the judiciary must adopt an effective system of caseflow management.   Caseflow management is based on the premise that it is the responsibility of the court to establish standards for the processing of cases and also, when necessary, to enforce compliance with such standards.’  (Internal quotation marks omitted.)

‘[E]nforcement of a scheduling order is critical in cases, such as the present one, assigned to the complex litigation docket ․ Enforcement of scheduling orders is also necessary to serve as a deterrent to attorneys in other complex litigation cases who might otherwise not comply.   Accordingly, Practice Book § 23–14 appropriately provides that a judge may enter any appropriate order which facilitates the management of the complex litigation cases.’  [ (Internal quotation marks omitted.) ]   Pounds v. Slater, Superior Court, judicial district of Waterbury, Complex Litigation Docket at Waterbury, Docket No. X02 CV 98 0167210 (September 10, 2003, Schuman, J.).”   Hodgate v. Ferraro, Superior Court, judicial district of Hartford, Complex Litigation Docket at Hartford, Docket No. HHD X04 CV 05 4034694 (April 16, 2008, Shapiro, J.), affirmed, 123 Conn.App. 443, 3 A.3d 92 (2010).

While they acknowledge that they were long aware of the identities of the proposed third party defendants, the defendants assert that they did not learn facts which would support impleading them until after receiving the report of plaintiffs' expert, David Biggs, P.E., on December 16, 2010, and until after deposing him on January 21, 2011.   See motion to modify, pp. 5–6.   The defendants contend that they diligently pursued Biggs' deposition since they first noticed it one year earlier, in January 2010.

The defendants argue that modification of the scheduling order to permit impleader of the newly proposed third parties will promote a fair and equitable result and judicial economy, by allowing all claims to be determined in one action, and will not in any way prejudice the plaintiffs, since discovery is not scheduled to be completed until January 2, 2012 and the case is not scheduled for trial until September 4, 2012.   Therefore, they assert that the modification of the scheduling order to permit impleader will not delay progression of the case.

The defendants' argument does not account for the prior disclosure to them of and their deposition of another plaintiffs' expert, Ralph Noblin, P.E., in August and September, 2009, about fifteen months before the agreed-to deadline of December 31, 2010 for closing the pleadings.   See # 127 (expert disclosure).   According to his expert disclosure, Noblin provided expert opinions concerning defective window installation at the project (see paragraph 1, page 2), and concerning incomplete flashing and defective roofing (see paragraph 6, page 4).   The defendants have not shown that they could not have promptly sought to implead A.W. Construction, the windows installer, and Crocker, the roofing subcontractor, based on information learned through discovery.

In addition, on January 5, 2010, at the second status conference held by the court, the plaintiff's agreed to provide an additional defects list.   They provided a letter, dated January 8, 2010, which stated that their consulting engineers had identified defects in the stone masonry and described the defects.   See plaintiffs' Exhibit C, pp. 1–2.

On January 21, 2010, the plaintiff's filed motions seeking to take out of state depositions of Grande, the masonry contractor, and of Crocker, which were granted by the court.   See # # 139.86, 140.86.   At about the same time, the plaintiffs' counsel suggested that the defendants should add Grande, Crocker and A.W. Construction as third-party defendants.   See motion to modify, pp. 3–4.   Defense counsel responded that he was not aware of a factual basis for doing so and would await Biggs' deposition in March 2010 and the depositions of Crocker and Grande.   See motion to modify, p. 4.

While the defendants note that the out of state depositions of Crocker and Grande were cancelled by the plaintiffs' attorney, they do not explain why they themselves did not proceed to seek to depose them.   Likewise, they do not explain why they did not seek to depose A.W. Construction.   The defendants have not shown that they could not have sought to implead A.W. Construction, Crocker, and Grande well in advance of the December 31, 2010 deadline for closing the pleadings, to which they agreed.

If the proposed third-party defendants were brought into the case now, the entire schedule for the matter would be disrupted.  General Statutes § 52–102a(b) provides, in relevant part, that each third-party defendant “shall have available to him all remedies available to an original defendant, including the right to assert set-offs or counterclaims against the third-party plaintiff, and shall be entitled to file cross-complaints against any other third-party defendant.   The third-party defendant may also assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim and may assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.”  “[T]he pleadings are to be treated in the same manner as those in the ordinary civil action.”  Senior v. Hope, 156 Conn. 92, 97, 239 A.2d 486 (1968).

A third-party defendant “will have an opportunity, subsequent to the granting of the motion to implead, to contest the legal sufficiency of the objectionable portions of the third party complaint;  ․ [and will have] all the other procedural mechanisms available ․ to protect [its] interests.”  (Citations omitted.)   Campagna v. Aronson, Superior Court, judicial district of Danbury, Docket No. 31 2972 (February 23, 1995, Stodolink, J.).

Thus, if three third-party defendants were added now, the pleadings would be re-opened, not closed, almost three years after the return date.   In addition, the new parties would be entitled to conduct written discovery, and other parties would be entitled to conduct written discovery as to them, which necessarily would make the agreed-to deadline for completion of that, May 2, 2011, impossible to meet.   In addition, the entire schedule for expert disclosures would be disrupted as well.   Consequently, the schedule for the filing and argument of dispositive motions, which are to be argued on March 27, 2012 (scheduled in order to provide the court with the requisite 120–day period to adjudicate the dispositive motions in advance of jury selection);  and the dates for jury selection and trial, would also be disrupted.   Permitting these disruptions to occur would delay the September 2012 trial date, which already is scheduled to occur long after the project was completed.   The defendants' motion to modify the scheduling order does not address these interim deadlines and the potential impact thereon of allowing these new parties to be impleaded.

“Once the court had established a firm timetable for events to occur, the parties were bound by these dates.   If the [defendants] had additional motions they wished to file, they should have acted within the deadline.”  Daily v. New Britain Machine Co., supra, 200 Conn. 574.   See Ivimey v. Watertown, 30 Conn.App. 742, 745, 622 A.2d 603, cert. denied, 226 Conn. 902, 625 A.2d 1375 (1993) (trial court did not act unreasonably or contrary to law when it determined that all pleadings filed after answer were untimely in view of orders to close the pleadings some fourteen months after the commencement of the action).

The defendants have not shown good cause to modify the agreed-to schedule.   In the exercise of its discretion, the court concludes that granting of the motion to implead and the motion to modify would unduly delay the trial of the action, and work an injustice upon the plaintiffs.   See General Statutes § 52–102a.

CONCLUSION

For the foregoing reasons, the defendants' motions to implead and to modify the scheduling order are denied.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

Shapiro, Robert B., J.