Maria Pires v. Pamela L. Colannino (2014)

MEMORANDUM OF DECISION

After consideration, the court issues this memorandum of decision concerning the defendant's December 19, 2013 motion (# 104), which seeks the entry of a nonsuit and dismissal as a result of the plaintiff's failure to appear for properly noticed depositions.   The motion appeared on the short calendar for February 18, 2014 as a take papers matter.   Oral argument was not requested.   The plaintiff filed no objection to the motion.

This action concerns claims arising from a motor vehicle accident.   See complaint.

Practice Book § 13–14(a) provides, in relevant part, “If any party ․ has failed to appear and testify at a deposition duly noticed pursuant to this chapter ․ the judicial authority may, on motion, make such order as the ends of justice require.”   Such orders may include a nonsuit and, where the party failing to comply is the plaintiff, a judgment of dismissal.   See Practice Book § 13–14(b)(1) and (5).

“[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 § 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 ․ The design of the rules of practice is both to facilitate business and to advance justice;  they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice ․ Rules are a means to justice, and not an end in themselves ․ Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure ․ 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;  Fox v. First Bank, 198 Conn. 34, 39, 501 A.2d 747 (1985);  see also Pavlinko v. Yale–New Haven Hospital, [192 Conn. 138, 145, 470 A.2d 246 (1984) ] (dismissal proper where party's disobedience intentional, sufficient need for information sought is shown, and disobedient party not inclined to change position);  the court should be reluctant to employ the sanction of dismissal except as a last resort ․ [T]he sanction of dismissal should be imposed only as a last resort, and where it would be the only reasonable remedy available to vindicate the legitimate interests of the other party and the court.”  (Citations omitted;  internal quotation marks omitted.)  Millbrook Owners Association, Inc. v. Hamilton Standard, supra, 257 Conn. 16–17.

“In order for a trial court's order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met.   First, the order to be complied with must be reasonably clear ․ Second, the record must establish that the order was in fact violated ․ Third, the sanction imposed must be proportional to the violation.”  (Internal quotation marks omitted.)   Wexler v. DeMaio, 280 Conn. 168, 179, 905 A.2d 1196 (2006).

In considering the first and second requirements set forth in Wexler v. DeMaio, supra, the court finds that the record shows that the defendant noticed the deposition of the plaintiff three times, over a period of several months, for August 27, 2013;  October 28, 2013;  and December 19, 2013.   See Exhibit A to motion.   In the absence of any objection to the motion, there is no evidence showing that the plaintiff advised the movant that she was unable to appear on the dates for which her deposition was noticed, nor did she suggest another date.   Based on the record, the court finds that the plaintiff repeatedly failed to appear for her duly noticed deposition.

Third, in considering what sanction is warranted, the court is mindful that the Supreme Court has stated that a nonsuit or dismissal is to be ordered as a sanction only as a last resort, and where it would be the only reasonable remedy available to vindicate the legitimate interests of the other party and the court.   See Millbrook Owners Association, Inc. v. Hamilton Standard, supra, 257 Conn. 16–17.

The movant has timely sought a nonsuit against the plaintiff.   The motion was not presented “on the eve of trial.”  U.B. Vehicle Leasing, Inc. v. Davis, 90 Conn.App. 206, 211, 876 A.2d 1222 (2005).   The movant did not “delay in moving for sanctions.”  Associated Investment Co. Limited Partnership v. Williams Associates IV, 230 Conn. 148, 164, 645 A.2d 505 (1994).

“Our rules of practice provide guidelines to facilitate the discovery of information relevant to a pending suit.   The primary purpose of a deposition taken pursuant to these provisions is discovery.”  Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 139, 491 A.2d 389 (1985).   The “rules of discovery are designed to make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.”  (Internal quotation marks omitted.)  Wexler v. DeMaio, supra, 280 Conn. 188–89.

The plaintiffs repeated failure to appear for her deposition, which was duly noticed, evidences an intentional refusal to do so and shows that she is not inclined to change her position.   Her refusal to be deposed prejudices the defendant's ability to investigate the plaintiff's claims and to prepare a defense.   It would be unfair for the defendant to have to evaluate the plaintiff as a witness in person for the first time at trial.   A nonsuit and dismissal are warranted.

CONCLUSION

In the exercise of the court's discretion, the motion for a nonsuit and a judgment of dismissal is granted.   Under these circumstances, the court need not consider orders regarding evidence taken to established or precluding evidence.   The request for an award of an attorneys fee is denied.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

Shapiro, Robert B., J.