Kenneth Norup et al. v. Gastroenterology Center of Connecticut, P.C. (2011)

MEMORANDUM OF DECISION RE MOTION TO OPEN JUDGMENT OF NONSUIT

The court has taken longer than it should have to decide this rather basic motion, for which it apologizes.   The fact is that the court has been wrestling for some time with the question of whether a series of what it views to be uncharacteristic acts of significant neglect by otherwise respected counsel who openly and candidly acknowledges such neglect can be the basis for opening the disciplinary nonsuit which has been entered in this case.   Sadly, the court has concluded that under our rules and case law, it cannot.

This medical malpractice action was brought in December 2008, with a January 2009 return date.   On February 26, 2009, the defendant filed a Request to Revise, to which the plaintiff's objections were overruled by the court, (Cronan, J.) on April 20, 2009.   For more than a year, the plaintiffs failed to file a revised complaint, but the defendant, rather than seeking a nonsuit, requested, and the court held, a pretrial conference on September 1, 2010, by which time the plaintiffs had still not filed a revised complaint.   At the conference, plaintiffs' counsel stated that a revised complaint would be filed by the following Monday (September 6) and the court, Skolnick, JTR ordered the pleadings closed within two weeks thereafter.   The plaintiffs eventually did file a revised complaint, although not until September 13, 2010.   The defendant objected to the revised version as well, on the ground that it did not delete the allegations that were the subject of the request to revise that had already been granted more than a year previously.   The plaintiffs filed no response to the defendant's objection, which was sustained by the court (Frechette, J.) on October 4, 2010.

On October 20, 2010, with no new complaint forthcoming, the defendant filed a Motion for Nonsuit for Failure to Plead.   At that time, a year and a half had already elapsed since the court overruled the plaintiffs' initial objections to the Request to Revise, and the plaintiffs had still not filed a substitute pleading in compliance with the court's orders.   The defendant reclaimed its Motion for Nonsuit to the short calendar list on December 9, 2010 and the motion appeared on the December 20, 2010 short calendar.   The defendant marked the Motion for Nonsuit “take papers” on December 14, 2010.

The plaintiff neither objected to the Motion for Nonsuit nor filed a substitute pleading.   Finally, on April 20, 2011, six months after the Motion for Nonsuit had been filed and precisely four months after the Motion had appeared on the short calendar, the court (Woods, J.) Granted the motion and entered a judgment of nonsuit for failure to plead.   Astonishingly, even after that judgment of nonsuit had been entered, the plaintiffs waited four more months before taking any action at all.   On the last possible day, August 22, 2011, they filed the present Motion to Open Judgment of Nonsuit along with what purported to be revised complaint.

The plaintiffs acknowledge that it was through oversight by their counsel that they:  1) failed to take timely action to file a proper revised complaint;  2) once the motion for nonsuit had been filed, failed to object to it promptly and/or try to cure the underlying defects in the complaint;  and 3) waited until the antepenultimate moment to file, at long last, a motion to open the nonsuit that had been entered precisely four months previously.   As an explanation, which counsel candidly acknowledges does not quite rise to the level of a good excuse, he cites his participation as second chair in a complex litigation trial in Waterbury earlier this year, but he also acknowledges that this explanation covers only a portion of the time during which the plaintiffs did essentially nothing to perfect their complaint and keep their case alive.

The defendants contend that plaintiffs were not prevented by “mistake, accident or other reasonable cause” from pleading in this matter.  Gen. Stats. § 52–212(a) states that:

Any judgment rendered or decree passed upon a default or nonsuit in the superior court may be set aside, within four months following the date on which it was rendered or passed ․ upon the complaint or written motion of any party or person prejudiced thereby, showing 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 that the person was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.

See also, Practice Book Section 17–43 (judgment may be set aside if there is a showing that a good cause of action existed at the time of judgment and that the plaintiff was prevented by mistake, accident or other reasonable cause from prosecuting).

In order to set aside a judgment rendered after a nonsuit, there must be a showing of both the existence of a good cause of action and that the plaintiff was prevented from prosecuting the action because of mistake, accident or other reasonable cause.  “Negligence is no ground for vacating a judgment, and it has been consistently held that the denial of a motion to open a default judgment should not be held an abuse of discretion where the failure to [act] was the result of negligence.”  Woodruff v. Riley, 78 Conn.App. 466, 471 (2003).   “Negligence of a party or his counsel is insufficient for purposes of § 52–212 to set aside a default judgment.”  Id. (noting that although notice of the legal action arrived at a difficult time in the defendant's life as she was separating from her husband, that situation was not sufficient to overcome the defendant's negligence in failing to appear and to defend against the plaintiff's cause of action).   See also, Jaquith v. Revson, 159 Conn. 427 (1970) (denial of a motion to set aside a nonsuit should not be held to be an abuse of discretion in any case in which it appears that a plaintiff has not been prevented from prosecuting the claim by mistake, accident or other reasonable cause);  Jaconski v. AMF, Inc., 208 Conn. 230 (1988) (finding by trial court that a nonsuit entered due to plaintiff's negligence rather than accident, mistake or other reasonable cause deprived trial court of authority to set aside nonsuit under Conn. Gen. Stats. § 52–212).   Under circumstances which to this court appear similar to, but considerably less egregious than, those in the instant case, the Supreme Court in Jaconski ruled:  “[W]e have long held that negligence is no ground for vacating a judgment, and that the denial of a motion to open a nonsuit judgment should not be held an abuse of discretion where the failure to prosecute the claim was the result of negligence.”  (Citations omitted.)   As negligence is not a ground for vacating a judgment, once a trial court in its exercise of discretion finds that the nonsuit was indeed the result of a party's negligence, it has no authority to open the judgment.  Id. at 237–39.

In Jaconski, the defendants had filed a Request to Revise in November 1986, and at a pretrial conference on May 12, 1987, the court had ordered counsel for the plaintiffs to file a revised complaint within one week.   The plaintiffs failed to file a revised complaint, prompting the defendants to file a motion for nonsuit on June 19, 1987.   Three days later, the plaintiffs filed objections to the request to revise.   The request to revise and plaintiffs' objections appeared on short calendar on July 27, 1987.   At the short calendar hearing, the trial court nonsuited the plaintiffs for failure to file a revised complaint, even though the motion for nonsuit itself was not on the short calendar for hearing that day.  Id. at 231–32.   The plaintiffs promptly filed a motion to set aside the nonsuit on August 7, 1987, but the motion was denied.   On appeal, our Supreme Court upheld the judgment of nonsuit based on the trial court's finding that the failure of the plaintiffs to file a revised complaint was due to their negligence, and not to any accident, mistake or other reasonable cause.  Id. at 238–39.

Here, the plaintiffs had full knowledge of the need to file a revised complaint and were aware of the fact that a judgment of nonsuit could be entered if they did not file an appropriate pleading.   Despite the court's sustaining of the defendant's objections to their revised complaint, and the later pendency for over six months of the defendants' motion for nonsuit, the plaintiffs did absolutely nothing, not even filing an objection to the motion for nonsuit before it had been taken on the papers following its appearance on the short calendar.   Even as the court (Woods, J.) held onto the motion for the full 120 days permitted for deciding such matters, the plaintiffs failed to file an objection or any other response.   As in Berzins v. Berzins, 105 Conn.App. 648, 653 (2008), where the Appellate Court noted that the plaintiffs' “inaction in this case was nothing short of complete and utter negligence,” plaintiffs' counsel here simply neglected the file altogether for a period of some ten months, from October 4, 2010 when the objection to the revised complaint was sustained, until August 22 of 2011, when he at last filed a motion to open the nonsuit.   His actions prior to that ten-month period were not much more impressive, with nearly 17 months having elapsed from the overruling of his objections to the defendant's initial request to revise in April 2009 to, with the prodding of the court, the eventual filing of an unsatisfactory revised complaint in September of 2010.

The defendant also contends that the Second Revised Complaint prepared by the plaintiffs and filed contemporaneously with the Motion to Open still makes allegations of negligence that have been previously ordered to be expunged and still fails to allege facts that support the claims of negligence and loss of consortium.   As the defendant's Request to Revise the Second Complaint is not before the court, however, and as the Revised Complaint comes long after the time to have filed such a revision has come and gone, the court does not consider any possible failure to comply with the request to revise in reaching its decision in this case.

Related to the latter claim, however, the defendant also contends that even if the plaintiffs had shown that they were prevented by mistake, accident or other good cause from filing a timely complaint, the plaintiffs have failed the second prong of the test for opening judgments by failing to demonstrate that a good cause of action exists.   See, Eastern Elevator Company, Inc. v. Scalzi, 193 Conn. 128, 131 (1984).   While the plaintiffs, in their motion, state that “the plaintiffs have a good cause of action” and make reference to the expert opinion attached to the complaint, “[t]he moving party on a motion to open must not only ‘allege,’ but also make a ‘showing’ sufficient to satisfy the two-pronged test of § 52–212 ․” (Citations omitted.)  Eastern Elevator Company, Inc., 193 Conn. at 133–34.   The mere assertion that a good cause of action or good defense exists is inadequate.   See Pantlin & Chananie Development Corp. v. Hartford Cement & Building Supply Co., 196 Conn. 233, 241 (1985).

The plaintiffs argue in response that the current revision of its complaint demonstrates that it has a valid cause of action, but as previously mentioned, that complaint is the subject of a Request to Revise that is yet to be heard.   The court, in any event, finds it unnecessary to reach this issue in light of its conclusion that plaintiffs have failed to establish that they were “prevented by mistake, accident or other reasonable cause from prosecuting the action ․” and that the entry of the nonsuit was solely the result of neglect.

To return to the thoughts expressed in the opening paragraph of this Memorandum of Decision, the only reasons the court can think of that might justify the opening of the judgment of nonsuit are 1) that the court has great respect for plaintiff's counsel;  2) that given the court's experience with him, his oversights in this case are altogether uncharacteristic aberrations;  and 3) that plaintiff's counsel was totally candid to the court in acknowledging his own mistakes both in making and then not curing the errors that led to the entry of a nonsuit and in failing to take prompt action after the nonsuit had entered.   The court finds no support in our case law, however, for a conclusion that these facts, either individually or in the aggregate, are sufficient to override the court's basis for finding that the entry of the nonsuit was the result of neglect, and not mistake, accident or other reasonable cause, and that they therefore do not justify opening this nonsuit.   The court is also concerned that if it were to recognize these factors as justifications in this case, disciplinary nonsuits, defaults and dismissals, as well as the entire concept of caseflow management would be rendered meaningless.  “[O]ur decisions also have underscored the importance of trial court caseflow management of crowded dockets.   Caseflow management is based upon 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.   Our judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system.   In the event of noncompliance with a court order, the directives of caseflow management authorize trial courts, in appropriate circumstances, to take action against either the errant attorney or the litigant who freely chose the attorney.”  (Citations and internal quotations omitted.)  Ruddock v. Burrowes, 243 Conn. 569, 575 (1998).

For all these reasons, the plaintiffs' Motion to Open Judgment of Nonsuit is denied, and the objection thereto is sustained.

Jonathan E. Silbert, Judge

Silbert, Jonathan E., J.