Emerick v. Town of Glastonbury ( 2017 )

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ROGER EMERICK v. TOWN OF GLASTONBURY
(AC 38646)
DiPentima, C. J., and Sheldon and Bear, Js.
Syllabus
The self-represented plaintiff landowner brought this action for, inter alia,
private nuisance against the defendant town, alleging that development
upstream from his property had caused damage to wetlands on his
property. The trial court rendered judgment dismissing the action as a
sanction for the plaintiff’s conduct during the five days of the jury trial,
in which the plaintiff, inter alia, refused to accept the court’s evidentiary
rulings, interrupted and spoke over the court, called the court’s rulings
‘‘bizarre,’’ remarked that the court was ‘‘incompetent’’ and needed ‘‘to
go back to law school,’’ and accused the trial judge of speaking in
‘‘gibberish’’ and nodding her head as if she were ‘‘drugged.’’ During the
trial, the court employed a series of progressive steps to address the
plaintiff’s behavior, which included, inter alia, verbal warnings, and
instructions to cease making comments about the court’s evidentiary
rulings and to cease interrupting the court and making insulting or
disparaging remarks about the court and the defendant’s counsel. The
court also fined the plaintiff and advised him on multiple occasions that
dismissal of the case was an option it would consider if he continued
with his actions. On the plaintiff’s appeal to this court, held that the
trial court did not abuse its discretion in dismissing the plaintiff’s action,
as his continuing and deliberate misconduct during the trial, for which
he bore sole responsibility, demonstrated such deliberate disregard for
the court’s orders as to warrant dismissal: the plaintiff did not demon-
strate any mitigating factors for his actions during the trial, the court’s
use of escalating disciplinary steps to compel his observance of its
orders proved unsuccessful, which left dismissal of the case as a last
resort and the only reasonable remedy, the court’s repeated warnings,
suggestions and fines had no impact on the plaintiff, as he ignored the
court’s admonitions and continued to delay the trial, and there was no
merit to the plaintiff’s claims that the court did not adhere to standards
of stare decisis, that the court dismissed the case on the basis of his
claims of judicial bias or that the dismissal followed from a finding of
contempt, as the dismissal was based on the court’s inherent authority to
compel observance of its rules and to deal with continuing misconduct;
furthermore, the court did not fail to consider the plaintiff’s motions
for a mistrial or his requests that the court recuse itself, there were
instances where the plaintiff raised his voice or challenged the court’s
evidentiary rulings in front of the jury, the absence of the jury when
certain acts of misconduct occurred did not deprive the court of its
authority to sanction the plaintiff for his continuing misconduct during
the trial and lack of cooperation with the court, and the plaintiff’s
claim that the dismissal of his case violated his constitutional right to
procedural due process was inadequately briefed and essentially restated
his previous arguments, which this court had rejected.
Argued April 13—officially released October 31, 2017
Procedural History
Action to recover damages for, inter alia, private nui-
sance, and for other relief, brought to the Superior Court
in the judicial district of Hartford, where the court,
Wiese, J., denied the plaintiff’s motion for summary
judgment and granted in part the defendant’s motion
for summary judgment; thereafter, the matter was tried
to the jury before Peck, J.; subsequently, the court,
Peck, J., denied the plaintiff’s motions for a mistrial and
rendered judgment of dismissal; thereafter, the court,
Peck, J., denied the plaintiff’s motion to reargue, and
the plaintiff appealed to this court. Affirmed.
Roger Emerick, self-represented, the appellant
(plaintiff).
Kristan M. Maccini, for the appellee (defendant).
Opinion
DiPENTIMA, C. J. The trial court possesses the inher-
ent power to impose sanctions on litigants in cases
before it, including dismissing the case, both to compel
observance of its rules and to bring an end to continuing
violations of those rules. D’Ascanio v. Toyota Indus-
tries Corp., 309 Conn. 663, 670–71, 72 A.3d 1019 (2013).
This power ‘‘rests within the discretion of the trial court
and will not be disturbed on review unless there is an
abuse of discretion. . . . Generally, a sanction should
not serve as a punishment or penalty. . . . Such drastic
action is not, however, an abuse of discretion where a
party shows a deliberate, contumacious or unwarranted
disregard for the court’s authority.’’ (Citations omitted.)
Fox v. First Bank, 198 Conn. 34, 39, 501 A.2d 747 (1985);
see also D’Ascanio v. Toyota Industries Corp., supra,
672; Millbrook Owners Assn., Inc. v. Hamilton Stan-
dard, 257 Conn. 1, 16–17, 776 A.2d 1115 (2001). In the
present case, the self-represented plaintiff, Roger Emer-
ick, appeals from the judgment of the trial court dismiss-
ing his case against the defendant, the town of
Glastonbury, as a sanction for his actions during trial.
On appeal, the plaintiff claims that the dismissal consti-
tuted reversible error.1 We are not persuaded that the
court abused its discretion in dismissing the plaintiff’s
case after his deliberate, continuing, and at times contu-
macious disregard for the court’s authority. Accord-
ingly, we affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to our decision. The plaintiff commenced this
action on February 15, 2011. In the operative complaint,
he set forth claims against the defendant of private
nuisance, reckless and wanton conduct, trespass, viola-
tion of General Statutes § 13a-138,2 intentional infliction
of emotional distress, negligent infliction of emotional
distress and breach of fiduciary duty.3 The plaintiff
alleged that he owned 580 Hopewell Road in South
Glastonbury, a forty acre property with wetlands along
Roaring Brook. He claimed that development upstream
from his property caused damage to Roaring Brook
and his wetlands. The operative complaint was filed on
October 29, 2013, and the defendant filed its answer
and special defenses on November 13, 2013.
On November 3, 2014, the defendant filed a motion
for summary judgment as to all counts. Two weeks
later, the plaintiff filed his own motion for summary
judgment on all counts. The parties filed various objec-
tions and replies to these motions, and the court, Wiese,
J., heard oral argument on the motions on January 26,
2015. On May 14, 2015, the court issued a memorandum
of decision granting the defendant’s motion with
respect to the plaintiff’s claims for damages for reckless
and wanton conduct, violation of § 13a-138, negligent
infliction of emotional distress, intentional infliction of
emotional distress and breach of fiduciary duty but
denying it as to his claims for damages for private nui-
sance and trespass, and his claim for injunctive relief
for intentional infliction of emotional distress. The
plaintiff’s motion for summary judgment was denied in
its entirety.
The trial commenced on October 27, 2015, before
Judge A. Susan Peck.4 At the beginning of the trial, the
court gave the jury preliminary instructions, including
an estimation that the evidentiary phase of the trial
would take three to four days. Following opening state-
ments, the plaintiff called himself as a witness. He testi-
fied throughout the first and second days and the
majority of the third day of the trial. Near the end of
the third day, the plaintiff called Daniel A. Pennington,
the defendant’s town engineer and manager of physical
services, as a witness. Pennington’s testimony contin-
ued into the morning of the fourth day of trial.
On the afternoon of the fourth day, the court excused
the jury to consider the defendant’s objections to the
plaintiff’s expert witness, Sigrun N. Gadwa. At the out-
set of the fifth day of trial, the court permitted Gadwa
to testify before the jury. During her testimony, the
jury was excused so that the court could consider the
objections by the defendant’s counsel and the plaintiff’s
responses thereto. After an extended argument, the
court focused on the plaintiff’s behavior during the trial,
finding that he had been insulting and abusive to the
court and the defendant’s counsel, resulting in a disrup-
tion of the administration of justice. After being inter-
rupted by the plaintiff, the court further found that the
plaintiff had exhibited a lack of respect for and refused
to follow court rules, procedure and decorum. As a
result of his misconduct during the course of the trial,
the court dismissed the plaintiff’s case. The plaintiff
subsequently filed a motion to reargue, which the court
denied. This appeal followed. Additional facts will be
set forth as necessary.
As an initial matter, we set forth the legal principles
and our standard of review. ‘‘It is well established that
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 . . . .’’ (Footnote omitted;
internal quotation marks omitted.) Evans v. General
Motors Corp., 277 Conn. 496, 522–23, 893 A.2d 371
(2006); see also DuBois v. William W. Backus Hospital,
92 Conn. App. 743, 748, 887 A.2d 407 (2005) (trial court
has inherent authority to impose sanctions), cert.
denied, 278 Conn. 907, 899 A.2d 35 (2006). The sanction
of ‘‘dismissal serves not only to penalize those whose
conduct warrants such a sanction but also to deter
those who might be tempted to [engage in] such conduct
in the absence of such deterrent. National Hockey
League v. Metropolitan Hockey Club, Inc., 427 U.S. 639,
643, 96 S. Ct. 2778, 49 L. Ed. 2d 747 (1976).’’ Pavlinko
v. Yale-New Haven Hospital, 192 Conn. 138, 145, 470
A.2d 246 (1984).
This case involves the inherent authority of the court
to impose reasonable sanctions against a party during
litigation. ‘‘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. . . . In
reviewing a claim that this discretion has been abused
the unquestioned rule is that great weight is due to the
action of the trial court and every reasonable presump-
tion should be given in favor of its correctness. . . .
[T]he ultimate issue is whether the court could reason-
ably conclude as it did. . . .
‘‘At the same time, however, we also have stated:
[D]iscretion imports something more than leeway in
decision-making. . . . It means a legal discretion, to
be exercised in conformity with the spirit of the law
and in a manner to subserve and not to impede or defeat
the ends of substantial justice. . . . In addition, 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. . . . 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 proceed-
ings without a determination of the merits of the contro-
versy 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 discre-
tion 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. . . . [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.) D’Ascanio v. Toyota Indus-
tries Corp., supra, 309 Conn. 671–72; see also Evans v.
General Motors Corp., supra, 277 Conn. 522–24; Mill-
brook Owners Assn., Inc. v. Hamilton Standard, supra,
257 Conn. 15–16; Pavlinko v. Yale-New Haven Hospital,
supra, 192 Conn. 145 (dismissal, when party fails to
obey court’s order, is appropriate and serves as penalty
and deterrent).
To determine whether the court’s dismissal of the
plaintiff’s case constituted an abuse of discretion, we
must set forth a detailed account of the events that
occurred each day of the trial. This account reveals that
the plaintiff’s confrontations with the court and his
refusal to comply with its orders began on the first day
of the trial and continued to its end on the fifth day
of trial.
FIRST DAY OF TRIAL—OCTOBER 27, 2015
At the outset of the first day, the court instructed
that there were to be no ‘‘speaking objections’’ and
that it would notify the parties regarding any further
argument. The plaintiff inquired if a copy of the ‘‘Prac-
tice Book’’ could be made available for his use during
the trial, and the court replied in the negative.5 The
plaintiff then asked if he would be permitted to testify
from the counsel table, rather than the witness stand.
The court replied in the negative. It reasoned that the
jury would need an unobstructed view of the plaintiff
as he testified and that ‘‘to maintain a proper decorum,
each witness should testify from the witness chair.’’
The plaintiff countered that it would be easier for the
jury to see him at the counsel table and that, in unrelated
cases, he had been permitted to testify from the counsel
table to accommodate his status as a self-represented
party. The court iterated its ruling that the plaintiff
would testify from the witness stand.
After further discussions regarding the plaintiff’s tes-
timony, the court stated that he would not be permitted
to read from a ‘‘marked up’’ copy of an exhibit. The
plaintiff voiced his displeasure with this procedure.6
The court responded that its role was to manage the
case, and that if this method proved unwieldy, then a
modification could be made. It also noted that the plain-
tiff could testify in a narrative, or use a question and
answer format. The court instructed that he could use
marked up copies of exhibits to present his case, but
could read only from full exhibits. The plaintiff then
asked if the court had any legal authority that required
a witness to testify from the witness stand, but the
court declined ‘‘to articulate’’ on that issue. The plaintiff
opined that the court had imposed a hardship on him.7
After a recess, the court informed the jury that the
trial likely would last through the middle of the follow-
ing week. The plaintiff and the defendant’s counsel
made opening statements and then the evidentiary
phase of the trial commenced.
The plaintiff was the first witness. During his testi-
mony, the defendant’s counsel made a hearsay objec-
tion. The court sustained the objection and explained
to the plaintiff that an out-of-court statement offered
in court to prove the truth of the matter, even if made
by the plaintiff, constituted hearsay. The following col-
loquy occurred:
‘‘[The Plaintiff]: This is the first I’ve heard of that.
Exception.
‘‘The Court: I’m sorry, Mr. Emerick.
‘‘[The Plaintiff]: I will take an exception.
‘‘The Court: The objection is sustained. Move on.
‘‘[The Plaintiff]: I’ve never heard of this.
‘‘The Court: Ask another question.
‘‘[The Plaintiff]: I’ve never heard of this.
‘‘The Court: Mr. Emerick, I’m going to ask you not
to comment—
‘‘[The Plaintiff]: Yes, Your Honor.
‘‘The Court: —on the rulings of the court.’’
After a further comment by the plaintiff, the court
reminded him that speaking objections were not permit-
ted. The court then excused the jury and stated: ‘‘I just
want to remind you that I specifically directed that
there be no speaking objections. And it’s not proper
for you to challenge my rulings in a way; if it’s based
on the law, it’s one thing, but if it’s not your understand-
ing, Mr. Emerick, you are not a lawyer; so I’m going to
guess that there are other things that may be not your
understanding. But just because it’s not your under-
standing, that doesn’t mean that it’s admissible in evi-
dence.’’ A discussion on whether the plaintiff’s out-of-
court statements constituted hearsay ensued, with the
plaintiff requesting that the court provide a citation to
support its ruling. The court declined to do so, and
instead suggested to the plaintiff what testimony would
be admissible.
The court stated that it would not explain the rules
of evidence to the plaintiff at the cost of the time of
the jury. The plaintiff remarked that he was surprised
by the ruling and that his concept of what testimony
would be permitted had been ‘‘turned . . . on its head.’’
The plaintiff also questioned why his complaint had
not been stricken, and the court explained that the
complaint contained allegations, while the rules of evi-
dence applied to ‘‘things that are being offered into
evidence in court.’’
The plaintiff’s testimony continued, with the defen-
dant’s counsel raising numerous objections, many of
which the court sustained.8 The plaintiff eventually
turned his testimony to conversations that he had had
with an individual named Peter Stern. The defendant’s
counsel asked and received permission to raise an
objection outside the presence of the jury. The defen-
dant’s counsel stated that this topic had been the subject
of a motion in limine and that the court previously
had informed the plaintiff that he was not permitted to
discuss any conversations that he had had with Stern.
A dispute between the plaintiff and the defendant’s
counsel ensued, at which point the plaintiff stated that
the defendant’s counsel ‘‘lies all the time.’’9 The court
instructed the plaintiff and the defendant’s counsel to
refrain from talking over each other and that argument
would be conducted in an orderly fashion. After consid-
ering the matter, the court sustained the objection and
the plaintiff’s testimony resumed.
The plaintiff subsequently sought to have a document
admitted into evidence and the defendant’s counsel
raised numerous objections, including a lack of authen-
tication. After the court sustained the objection, the
plaintiff requested an interruption of his testimony to
‘‘briefly’’ call Pennington, the engineer and manager of
physical services for the defendant, to authenticate the
document. The court rejected this, stating that it was
‘‘not appropriate’’ and that the plaintiff could not ‘‘have
a witness testify in the middle of another witness’ testi-
mony.’’ The court then excused the jury.
The court informed the plaintiff that he needed to
‘‘plan out’’ his evidence and testimony. The plaintiff
responded that the court’s interpretation of the authen-
tication requirement was ‘‘bizarre.’’ After a recess, the
plaintiff again described the proceedings as ‘‘bizarre.’’
Eventually, the jury returned and the plaintiff’s testi-
mony continued for the remainder of the day.
SECOND DAY OF TRIAL—OCTOBER 28, 2015
At the outset of the second day of trial, the defen-
dant’s counsel noted that several of the photographs
that the plaintiff would be seeking to have admitted
into evidence contained ‘‘editorial comments.’’ The
defendant’s counsel wanted to raise her concerns about
these exhibits outside the presence of the jury because
she felt ‘‘like I’m being put in the position where I look
like I’m harassing [the plaintiff] by objecting, because
the jury doesn’t understand what the [Connecticut]
Code of Evidence is. I’m repeatedly objecting. It looks
like I’m harassing him. It’s prejudicial to the [defen-
dant].’’ The court ruled that the objections would need
to be raised in due course as the plaintiff attempted to
introduce each of the photographs into evidence. The
discussion then turned to another exhibit, and the court
indicated to the plaintiff that this document contained
hearsay. The plaintiff responded: ‘‘It is not hearsay.
You’re making this up.’’ During the court’s response,
the plaintiff interrupted, prompting the following admo-
nition: ‘‘Excuse me. I am talking, Mr. Emerick. I am
talking. You may not like it, but my job here is to rule
on the evidence that is offered in this case, in accor-
dance with the Code of Evidence, not what you think
it should be.’’
After further discussion, the court warned the plain-
tiff that several of his exhibits were ‘‘problematic’’ and
subject to objections from the defendant’s counsel, and
therefore he should refrain from discussing the sub-
stance of these exhibits. The plaintiff claimed that all
of the objections by the defendant’s counsel had been
sustained, and that ‘‘lawyers have a right to lie, and
I’m getting tired of it.’’ The court stated that while the
plaintiff was entitled to his opinion, he was not to repeat
his derogatory comments about lawyers to the jury.
The plaintiff resumed his testimony in front of the
jury. At one point, the court, after sustaining an objec-
tion, reminded the plaintiff that his out-of-court state-
ments, offered for the truth of the matter asserted,
constituted hearsay. Outside the presence of the jury,
the court inquired as to how long the plaintiff’s testi-
mony would last; he replied, ‘‘[m]aybe all month.
Excuse me. I tend to be jocular on occasion.’’ The court
repeated its inquiry, and a dispute ensued.10 At this
point, the plaintiff moved for a mistrial, which the court
denied.11 The court again cautioned the plaintiff about
his conduct and raised the possibility of sanctions.12 It
then instructed the plaintiff to prepare a written outline
of the remainder of his testimony during the lunch
break. In response, the plaintiff again complained about
the court’s evidentiary ruling and included ad hominem
remarks regarding Judge Peck’s competence.13
The court restated its order for the plaintiff to com-
pose an outline, and further argument ensued. During
this argument, the plaintiff accused the court of giving
‘‘preferential treatment to lawyers’’ and was told, on
several occasions, to stop speaking. The plaintiff char-
acterized the court’s statements as ‘‘ridiculous . . . .’’
Before the jury returned, the following colloquy
occurred:
‘‘[The Plaintiff]: This is not law.
‘‘The Court: That’s it.
‘‘[The Plaintiff]: This is not law. This is an abuse of
law at the highest level.
‘‘The Court: I want—you will not say one more word.
You will not say one more word. Get on that witness
stand.
‘‘[The Plaintiff]: I move to recuse.
‘‘The Court: Mr. Emerick, take the witness stand. Sit
down. And you will not make any further comments or
raise your voice in front of this jury.
‘‘[The Plaintiff]: I have no respect for you whatso-
ever.’’ (Emphasis added.)
The plaintiff resumed his testimony. Despite the
court’s prior rulings, he continuously made reference
to photographs and documents that had been ruled
inadmissible.14 At one point, the court inquired if the
plaintiff had planned to ask another question, to which
he responded, ‘‘Yes, I am, unless you’d rather ask it for
me.’’ After a few more questions, the court informed
the plaintiff that his testimony was not furthering the
issues in this case and then excused the jury for lunch.
The court reminded the plaintiff to complete his written
outline for the remainder of his testimony during the
break.
Before his testimony resumed, the court again
warned the plaintiff about his conduct15 and cautioned
him to not raise his voice, even when the jury was
not in the courtroom. After an extended discussion
regarding the admissibility of various exhibits, the fol-
lowing colloquy occurred:
‘‘[The Plaintiff]: May I be excused and call me back
when you and the lawyer here get done talking?
‘‘The Court: No, sir. Exhibit 13.
‘‘[The Plaintiff]: I again request a mistrial. A gross,
gross, gross incompetence regarding legal knowledge
and understanding what the complaint is about and
literally fabricating things that don’t make any sense at
all. It’s bizarre to me, what I’m listening to.
‘‘The Court: I just want to note for the record, Mr.
Emerick, that—well, first, it’s appropriate to stand
when you address the court. You don’t have to
respect me.
‘‘[The Plaintiff]: I don’t.
‘‘The Court: Which you’ve already indicated on the
record before, but you do have to respect the process.
‘‘[The Plaintiff]: And you don’t respect me or my com-
plaint, and you’re just using your position of power to
formulate or promote the business of law, pursuant to
Practice Book § 1-8.
‘‘The Court: Your comments are totally inappropriate,
Mr. Emerick.
‘‘[The Plaintiff]: No, it’s not.
‘‘The Court: And I’m going to direct you to confine
your comments to the legal issues that we have to
address. These extraneous comments that you’re mak-
ing are totally inappropriate. Okay. Exhibit 13—
‘‘[The Plaintiff]: And the comments that I’m hearing
are totally inappropriate. . . . It’s a waste of time.’’
As the parties and the court continued to discuss the
exhibits outside of the presence of the jury, the plaintiff
asked if he would be permitted to voir dire the defen-
dant’s counsel regarding her ‘‘math capability’’ and
stated that the court was ‘‘just nodding your head like
you’re drugged or something. Yeah, let’s move on. This
makes no sense.’’ After a ruling on a particular exhibit,
the plaintiff sarcastically remarked, ‘‘[o]f course it’s not
coming in,’’ and moved for a mistrial because it was ‘‘a
waste of time presenting a case’’ to the court, which,
in his view, was ‘‘incompetent.’’ Shortly thereafter, after
the court asked him about a particular exhibit, the plain-
tiff abruptly left the courtroom, without asking permis-
sion to do so.
After a recess, the court made the following state-
ment outside the presence of the jury: ‘‘Mr. Emerick,
you’ve been extremely disrespectful of this process, the
court, opposing counsel. You’ve shouted at me. You
have talked over me. You’ve made snide and insulting
comments to me, demonstrating what you have stated
to be your lack of respect for me. Your behavior is
intolerable, but I want to put you on notice now that
you will not comment. I am going to rule on evidence.
You will not comment on my rulings. You will not be
disrespectful to me or opposing counsel or I will dis-
miss your case. I want you to understand that.
‘‘I will not declare a mistrial. I will dismiss your
case. You do not have to like me. I’m not asking you
to. But you have to respect this process, or you have
no right to be here. You can disagree but you cannot
be—you cannot continue to be abusive. Your behavior
has been abusive. You must present your case in a
proper and respectful manner, in accordance with the
rules of decorum and the rules of practice and the rules
of evidence of this court, or it will be dismissed.
‘‘I want you to understand that. This is the—I should
have warned you when we came back from lunch, and
I deferred, because I thought maybe we could make
some headway. But it’s obvious to me after that scene
that you just created by rudely turning your back, rush-
ing out of the courtroom, slamming the swinging door
against the wall, that you need to know and understand
that this is the way it’s going to be.
‘‘So, what I’d like to do now, if you will agree with
what I just said, that you understand what I’ve just told
you, Mr. Emerick, we can proceed. . . . But if you
have no intention of behaving in a proper and civilized
and nonabusive manner, then I think the sanction of
dismissal is an appropriate one. Do you understand?’’
(Emphasis added.) The plaintiff responded in the affir-
mative. Despite the court’s statement, the plaintiff again
challenged the honesty of the defendant’s counsel spe-
cifically, and attorneys generally. Later that day, and
outside the presence of the jury, the plaintiff raised his
voice to the court, and after an objection was sustained,
he remarked, ‘‘[n]o kidding.’’
THIRD DAY OF TRIAL—OCTOBER 30, 2015
On the third day of trial, the court commented on
the plaintiff’s conduct. ‘‘I just have a few remarks I want
to make before we begin. They’re directed against the—
primarily concerning the disruptive behavior of [the
plaintiff] on [October 29, 2015], which needs to be
addressed by the court. And I just want to say to you,
Mr. Emerick, I know I may have said some of this
previously, but it bears repeating.
‘‘Because you’ve chosen to represent yourself, it does
not mean that you get to rewrite the rules of court to
suit yourself. You are not an inexperienced litigant. This
is not the first time that you have represented yourself
in a civil proceeding. Your behavior thus far has been
extremely disruptive and calculated in an effort to pre-
sent your case in the peculiar way that you believe you
should be entitled to present it, despite warnings that
your tactics are improper and unacceptable in a court
of law.
‘‘This court, the Superior Court, has existed—existed
long before you filed your first pleading in this case. It
will continue long after this lawsuit is history. Individual
litigants do not come here on a blank slate, and you
know this, based on your own courtroom experiences.
There are rules of courtroom decorum, rules of civil
practice, and rules of evidence established by our legis-
lature and judges of the courts of this state that must
be followed in fairness and justice to all parties to a
litigation, the jury and the public.
‘‘You can’t ignore the rules based on your own vision
of how you should be able to present your case to a
jury. Now, my goal is to conclude this trial on the merits,
and I make this statement at this point to remark for
the record that your behavior has been an outrageous
display, disrespectful of opposing counsel, her client,
and the jury, and the court, as I have noted. It has
delayed the progress of this trial, caused the jury to be
excluded from the courtroom for extended periods of
time to go over, while we go over in court, issues relating
to your exhibits, all of which could have been avoided,
had you heeded the directions and rulings of the court.
‘‘You’ll recall that the court first attempted to resolve
issues relating to your exhibits on Monday, before the
evidence began; despite several efforts, you have cho-
sen to ignore the concerns and proper objections to
your proposed exhibits at a time when much of the
delay could have been avoided. You’ve also ignored
rulings and directions of the court concerning the rules
of evidence and the rules of practice concerning your
exhibits and testimony. You’ve flagrantly violated
proper courtroom decorum by making personal attacks
against opposing counsel and me.
‘‘You rudely speak while others are speaking; you
continuously interrupt. You have shouted at me in an
extremely loud voice and in disparaging tones. You
stormed out of the courtroom on Wednesday [October
28, 2015] in the midst of being addressed by the court.
You slammed the swinging door against the wall upon
exiting so loudly that the marshals were alerted. You
have repeatedly ignored the rulings of the court, causing
them to be repeated over and over, all resulting in
unnecessarily delaying these proceedings.
‘‘This repeated behavior is contumacious. It cannot
go unaddressed, as I’ve indicated. You’ve acted in a
wilful—in a wilful, repeated, conduct which is directed
against the dignity and authority of this court, which
has interfered with the orderly administration of justice.
If you repeat this conduct, I will fine you for each such
contemptuous act. Do you understand what I’ve just
said to you, Mr. Emerick? [The plaintiff responded in the
affirmative.] Okay. All right. Then, let’s begin. Hopefully,
today’s a new day.’’ (Emphasis added.)
The parties and the court resumed discussions
regarding exhibits that the plaintiff would be attempting
to introduce into evidence. On two occasions, the court
warned the plaintiff that the next time he spoke when
the court was talking, it would ‘‘cost [him] a hundred
dollars . . . .’’ The court extensively explained the
redactions needed so that certain exhibits would be
admitted into evidence. It also informed the plaintiff
that his testimony needed to be concluded by the
lunch break.
The plaintiff again requested a mistrial, which the
court denied.16 The court directed the plaintiff to take
the witness stand, and the plaintiff continued to com-
plain about the court’s rulings. After being directed
to the witness stand for a second time, the plaintiff
responded: ‘‘Incredible.’’ The court imposed a $100 fine
for his ‘‘gratuitous comment . . . .’’17
During his testimony, the plaintiff repeatedly was
cautioned not to refer to items that had been ruled
inadmissible.18 After the court excused the jury for the
morning recess, it articulated its concern regarding the
length of time to complete both the plaintiff’s testimony
and the trial. During this exchange, the plaintiff ques-
tioned the court’s impartiality and stated, ‘‘I notice you
read the statement this morning. Did you get that yester-
day with all the judges and your help?’’ The court
responded: ‘‘I’m going to warn you again, Mr. Emerick,
you make another comment like that and I will fine you
another hundred dollars. It’s impertinent. It has nothing
to do with your case. It’s totally improper. You will
show proper respect and decorum in this courtroom.’’
Following the morning recess, the plaintiff’s testi-
mony continued. He raised the issue of whether the
complaint had contained ‘‘a claim for emotional distress
. . . .’’ The defendant’s counsel immediately objected,
and the court excused the jury. The defendant’s counsel
argued that the plaintiff was ignoring the court’s previ-
ous rulings.19 The court agreed with counsel’s argument.
The plaintiff completed his testimony, and the defen-
dant’s counsel conducted her cross-examination. Dur-
ing the plaintiff’s redirect examination, he made
reference to an offer of settlement. The court sustained
the immediate objection from the defendant’s counsel
and struck the plaintiff’s statement. Shortly thereafter,
he made another reference to an offer to settle the
matter, prompting another objection.20 After a third ref-
erence to settlement discussions, the court excused the
jury. The defendant’s counsel argued that the plaintiff
had abandoned his action by wilfully ignoring the
court’s instructions and requested a dismissal.21 During
the ensuing argument, the plaintiff claimed that the
defendant’s counsel stated an ‘‘outright lie . . . .’’ The
court admonished the plaintiff for that accusation and
for speaking over the court.22
The plaintiff completed his redirect examination and
called Pennington as the next witness. After the jury
had been excused for the day, the defendant’s counsel
informed the court that she planned to move for a
directed verdict at the conclusion of the plaintiff’s case.
The court then adjourned for the day.
FOURTH DAY OF TRIAL—NOVEMBER 3, 2015
On the next day of trial, the court immediately
inquired about the time frame for concluding the case.
The impetus for this discussion was a note from an
alternate juror asking to be excused because of a finan-
cial hardship. The court noted that the jurors had been
informed that the trial would take four days, and yet,
at the start of the fourth day of evidence, the conclusion
of the trial was not imminent. The plaintiff estimated
that he could complete his direct examination of Pen-
nington by the end of the day. The court responded:
‘‘Oh, no, no, no. Not today. You have to finish him this
morning. There’s no question about it. No question. You
can’t have beyond this morning with this witness.’’
The court then addressed and orally denied the plain-
tiff’s written motion for a mistrial alleging judicial bias.23
Pennington’s testimony resumed, subject to a variety
of successful objections from the defendant’s counsel.
At one point, the court excused the jury and rejected
the plaintiff’s attempt to have certain exhibits admitted
into evidence as a judicial admission. Later, the follow-
ing colloquy ensued:
‘‘The Court: . . . This case has been unduly pro-
longed because the plaintiff, in particular, has repeat-
edly sought to introduce things and argue evidentiary
issues over and over and over again, despite the rulings
of this court.
‘‘[The Plaintiff]: And my reply—
‘‘The Court: We need to—we need to move on, Mr.
Emerick.
‘‘[The Plaintiff]: I agree.
‘‘The Court: The jury, you know, one of my roles as
a judge is to, you know, protect the integrity of the
administration of justice. You know, a jury’s time and
attention has to be protected. It’s not protected, it’s not
respected, if their time is wasted sitting in a jury room
because issues that have been addressed and ruled on
by the court and that you have made a redundant record
of, you keep on raising it and raising and raising. It’s
disrespectful of the jury. It’s disrespectful of this pro-
cess, and we need to move this case along.’’
After the lunch break, the defendant’s counsel argued
that Gadwa was not qualified to testify as an expert
and that, in the alternative, her opinions would not
assist the jury in understanding the evidence in this
case. The court excused the jury for the remainder of
the day. During his voir dire of Gadwa, the plaintiff
claimed that the court had interrupted him, and the
court iterated that the trial had gone on ‘‘way too long’’
as a result of ‘‘unnecessary arguments and improper
arguments’’ by the plaintiff. The plaintiff responded,
‘‘[i]ncredible, incredible.’’ The court warned him that if
he made a similar comment again, he would be fined.
Later, the plaintiff asked Gadwa whether the defen-
dant had acted negligently or recklessly. The defen-
dant’s counsel objected, arguing that the court
previously had ruled that topic improper because it
went to the ultimate issue for the jury. The court agreed
with the defendant’s counsel. The plaintiff responded:
‘‘Let the record show that I filed an exception on this.
This is beyond, again, beyond belief, beyond credibility,
beyond the generally accepted common knowledge of
the general public, beyond anything I’ve read in law thus
far. This goes well beyond anything. This is—appears
to be, and I cite this as an objection—this is so gross;
this is like a collusion between the judge . . . and the
defendant’s counsel.’’ He also noted that he could not
understand the court’s confusing and bizarre
statements.
After more questions to Gadwa, the court sustained
an objection, and the following colloquy occurred:
‘‘[The Plaintiff]: Can the court please tell me what I
plead[ed] in my complaint, because this is what we’re
talking about. This is my complaint; so can you tell
me, please—
‘‘The Court: Ask another—
‘‘[The plaintiff] —do you have enough decency to
let—
‘‘The Court: You know what, we’re going to adjourn
for the day.
‘‘[The Plaintiff]: —me speak, and please have enough
decency to tell me what my complaint is about?
‘‘The Court: Mr. Emerick, you are totally out of line.
You are totally out of order.
‘‘[The Plaintiff]: You cut me off every time I start
to speak.
‘‘The Court: It is not the role of the court to tell you
how to conduct your examination.
‘‘[The Plaintiff]: Do you understand when I file a
motion for mistrial—
‘‘The Court: I’ve tried to—
‘‘[The Plaintiff]: —I went downstairs and vomited
[during the second day of trial after he abruptly left the
courtroom] because I realized what you were doing.
That’s how sick you got me. I’m standing in front of
someone—
‘‘The Court: Mr. Emerick—
‘‘[The Plaintiff]: —after all this time, that I know is
here to destroy my case—
‘‘The Court: Mr. Emerick—
‘‘[The Plaintiff]: —with their logic.
‘‘The Court: —that’s going to cost you another hun-
dred dollars. You’re up to three hundred dollars. You’re
totally out of order. You have disrespected this court;
you have abused—you have abused—
‘‘[The Plaintiff]: I disagree.
‘‘The Court: —the privilege that you’re being given
here.
‘‘[The Plaintiff]: Self-serving. I swore I would not get
mad today. I swore I would not raise my voice.
‘‘The Court: You are—you have constantly—
‘‘[The Plaintiff]: And you are always able to do it.
‘‘The Court: You are rude, you are abusive. You are
abusing this process. You have squandered your time,
squandered the time of this jury. You are totally out
of line.’’
The court then adjourned for the day.
FIFTH DAY OF TRIAL—NOVEMBER 4, 2015
On the final day of the trial, the court informed the
parties that it would permit Gadwa to testify and that
the defendant’s counsel would have to raise her objec-
tions in front of the jury. After the court sustained an
objection raised by the defendant’s counsel, the plaintiff
remarked, ‘‘[i]ncredible.’’ The court instructed the plain-
tiff to refrain from commenting on its rulings. After
an objection was raised following the plaintiff’s next
question to Gadwa, the plaintiff spoke over the court
as it ruled. The court admonished the plaintiff: ‘‘Mr.
Emerick, you are out of line. You will not speak when
anybody else is speaking. You will not be disrespectful
to the court.’’ It then offered the plaintiff some sugges-
tions on how to question his expert.24 Rather than follow
the court’s advice, the plaintiff commented on the
court’s statement and was ordered to refrain from
such behavior.
The plaintiff attempted to introduce a document,
exhibit 13, into evidence, which the court previously
had ruled inadmissible on several occasions. The court
excused the jury, and the defendant’s counsel stated:
‘‘I know that the court is making its best effort to make
this a fair and balanced proceeding, but when you rule
and tell [the plaintiff] to move on and that this is not
admissible, and he keeps going back and he keeps going
back, the jury necessarily wants to see that [exhibit 13].
It’s highly prejudicial to my client. He’s not following
this court’s instructions.’’ The court noted its agreement
with the defendant’s counsel, who requested that the
plaintiff’s case should be considered abandoned and
dismissed, or, at a minimum, that the plaintiff follow
the court’s instructions. The court responded: ‘‘I don’t
disagree with you. Your behavior, Mr. Emerick, is
obstructive to the progress of this case.’’ The plaintiff
continued, and the court admonished the plaintiff from
arguing in that ‘‘tone of voice. . . . You will not, Mr.
Emerick, or I will remove you—have the marshal
remove you from this courtroom. . . . I’m sorry. We
are not going to keep doing this, Mr. Emerick. You will
adhere to the rules of this court, period. If you do not,
I will dismiss this case. We’ve not made any progress,
hardly no progress with this witness, because of your
obstreperous behavior, your refusal to accept the rul-
ings of this court. In this courtroom, it is the judge, the
person in this chair, where I am, who makes rulings on
the law. You don’t have to agree with me. I don’t require
you to agree with me. I just require you to accept my
rulings, and if, at the end of this case, the case goes
against you, you can take it up with an appellate court,
as is your right to do. But for now, for here, I am the
final say on what the law is. Do you understand me? I
know you’re not looking at me. You’re looking down
and you’re reading something, and I don’t know what
you’re doing. As you’ve repeatedly done, you refuse to
look at the person who’s speaking to you. So, do you
understand and hear me, what I’ve said? In this court-
room, I am the final arbiter of what the law is. Do you
understand?’’ The plaintiff responded in the affirmative.
Before taking a recess, the court informed the plaintiff
that it would not revisit this evidentiary ruling.
After the ruling, the plaintiff resumed his questioning
of Gadwa. Shortly thereafter, he made reference to
exhibit 13, prompting an objection from the defendant’s
counsel, which the court sustained.25 The plaintiff then
posed a series of questions to Gadwa, many of which
were successfully objected to. The defendant’s counsel
specifically requested that the court order the plaintiff
to cease questioning Gadwa with respect to exhibits
17, 18, and 23. The court instructed the plaintiff to
refrain from discussing those exhibits, and he
responded by citing to § 7-4 of the Connecticut Code of
Evidence. The court declined to entertain this argument
and instructed him to proceed. The court again
attempted to guide the plaintiff in the questioning of
an expert witness.
After some further questioning, the court sustained
an objection by the defendant’s counsel to a portion of
Gadwa’s testimony that was based on speculation. The
court instructed the jury that Gadwa’s response was
speculation and therefore could not be considered in
its deliberations. The plaintiff then questioned Gadwa
regarding a photograph of water that was not on the
plaintiff’s property, which the court previously had
ruled inadmissible. The court sustained the objection
by the defendant’s counsel, explaining to the jury that
opinions regarding other property were not relevant to
the plaintiff’s case. The plaintiff then asked if Gadwa
had an opinion about the ‘‘source of some of the water
quality’’ on his property. The defendant’s counsel
objected, and the court again excused the jury.
The court heard argument from the defendant’s coun-
sel and the plaintiff. The court noted that evidence
was needed to support the allegations contained in the
complaint, at which point the plaintiff interrupted the
court. The plaintiff accused the court of ‘‘redrafting’’ his
complaint and always interrupting him. After allowing
further argument from the plaintiff, the court sustained
the objection by the defendant’s counsel. The plaintiff
then stated: ‘‘I would like to just first move for a mistrial
because you are so bizarre in your statements. It is
bizarre beyond anything I’ve ever come across in my
life, what you’re saying. It’s bizarre. I don’t know how
to address something which is—it doesn’t register on
a general public scale of common intelligence that you
would expect someone to—to say. What you’re saying
makes no sense at all, actually, no sense. It’s contrary
to the complaint. It’s contrary to the evidence that’s
been entered. It’s contrary to everything for validation;
there’s nobody would say that this is not valid. . . .
And you just keep talking in circles like this lawyer
here about some—nothing is relevant. There is nothing
relevant. The whole complaint is about what they’ve
done to allow this quality and quantity degradation com-
ing in.’’
The plaintiff then criticized the court’s ruling as mak-
ing ‘‘no sense at all, none, in law and the rules of the
Code of Evidence . . . .’’ At this conclusion of his com-
mentary, the following colloquy occurred:
‘‘The Court: Mr. Emerick, you have been grossly
insulting. You’ve abused me, you’ve insulted me. You
have abused—you have abused this process in a way
that has totally disrupted and interfered with the admin-
istration of justice—
‘‘[The Plaintiff]: I consider that a lie.
‘‘The Court: —as I have always understood it to be.
And I—you have insulted me openly. You have insulted
me repeatedly under your breath. You’ve accused me
now, for at least the third time, of making bizarre rul-
ings. You have accused me of trying to destroy your
case. You have only—you only have listened to what
you have to say and what your view of this case is.
That is just—if you have—just give me a moment. You
obviously have no respect for court rules or procedure.
You have no respect for the rule of law other than
your own interpretation as what that should be. Your
behavior is unmanageable. If I haven’t said it’s intolera-
ble, you know, I’ll say it again. You have insulted your
opposing counsel repeatedly, repeatedly. You’ve made
everybody in this courtroom uncomfortable. You have
wilfully disregarded any semblance of courtroom deco-
rum. If I didn’t indicate it before, you verbally abused
staff.26
‘‘[The Plaintiff]: I will note that the court is reading
from a preprepared statement before any of this
occurred.
‘‘The Court: Absolutely, because I have thought—
‘‘[The Plaintiff]: She had prepared it before she even
walked into court and brought it with her. So, now she
was reading it—
‘‘The Court: I hope that I—
‘‘[The Plaintiff]: —so that she can justify—
‘‘The Court: —any statement that I make, Mr. Emer-
ick, is only because it’s thoughtful, that I have given it
a great deal of thought.
‘‘[The Plaintiff]: Planning, is what I call it.
‘‘The Court: And I have—I think I’ve been very
restrained. I indicated to you last Wednesday, the sec-
ond day of trial, because of your behavior on that day,
that as a sanction, that your case should be dismissed,
because you really do not—you don’t respect the pro-
cess. And to the extent that you are not willing to abide
by the established rules of practice and procedure and
evidence and rules of decorum, you really have abused
your right to be here. You—
‘‘[The Plaintiff]: This is all preplanned on your part.
You know that as well as I do, and you want to put
that down on the record—
‘‘The Court: This is not helping you. This is not helping
you one bit.
‘‘[The Plaintiff]: —so the Appellate Court can say, oh,
we have to stand by our colleague in the business.
‘‘The Court: This is not helping you one bit, Mr.
Emerick.
‘‘[The Plaintiff]: A hundred percent of the objections
by opposing counsel, which are bizarre, one hundred
percent are sustained, no matter what they are.
‘‘The Court: You know—
‘‘[The Plaintiff]: It gets old.
‘‘The Court: —Mr. Emerick, after this case, you know,
this process, civil justice, civil trials, it will continue
on, you know, after both you and I are gone. It’s bigger
than you, it’s bigger than me.
‘‘[The Plaintiff]: Right. And people standing before
you will be in the business, and so they have to accom-
modate that. That’s right.
‘‘The Court: And—
‘‘[The Plaintiff]: People in the business will accommo-
date them.
‘‘The Court: —my concern at this point is preserving
the integrity of the judicial process.
‘‘[The Plaintiff]: No, it isn’t at all. That’s why you’re
smiling so much. Let it be shown that the court is smiling
with a preprepared statement that she made before she
even walked into court, and then she knew she would
ask questions and make ruling, so that—to make me
look bad. It’s so obvious; it’s not very intelligent.
‘‘The Court: You have repeatedly—
‘‘[The Plaintiff]: It’s well planned out. And you can
smile because you know the Appellate Court will do
nothing but—
‘‘The Court: If you continue, Mr. Emerick—
‘‘[The Plaintiff]: —agree with you on everything. All
you have to do is read the statement.
‘‘The Court: —if you don’t stop talking, I’m going to
ask the marshal to take you outside, and when you’re
prepared to listen, I’ll have him bring you back. But
you need to stop talking, because I have a right to speak,
too. You’ve refused to follow or respect the require-
ments of the law as articulated by this court, and like
I indicated to you just earlier today, in this courtroom,
it is my job, whether, you know, you like it or not, it
is my job to decide what the law is and what the appro-
priate procedure is for us to follow. We don’t all—we
don’t—the litigants that come to this court do not create
their own rules. We can’t operate that way; we don’t
operate that way. It has no place here, you divining
your own rules and your own interpretation of the
law . . . .’’
The court and the plaintiff then discussed the issue
of what opinion testimony would be permitted from
Gadwa. After debating what had been said on the prior
day regarding § 7-3 of the Connecticut Code of Evi-
dence, the court stated: ‘‘I don’t know where you came
to the—jumped to the conclusion that you jumped to,
Mr. Emerick, but that’s your problem. That’s not mine,
because that is not what I—I never told you yesterday
that you could not elicit opinions from your expert
witness. We’re finished here, Mr. Emerick. I’m dismiss-
ing your case.’’ In conclusion, the plaintiff stated that
he had ‘‘spent five years or four years on a case, present
a perfect case, and you destroyed it because I’m a self-
represented party. Congratulations, [the defendant’s
counsel], corruption prevails.’’
As we have detailed extensively, the plaintiff inappro-
priately challenged the court’s rulings from the outset
of the trial through the order of dismissal. He also con-
sistently interrupted and spoke over the court, despite
numerous warnings about this behavior. The plaintiff
refused to accept the court’s evidentiary rulings. Over
the course of the trial, he insulted the court by calling
the rulings ‘‘bizarre’’ and remarking that the trial court
was ‘‘incompetent’’ and needed ‘‘to go back to law
school.’’ The plaintiff also accused the court of speaking
in ‘‘gibberish’’ and nodding her head as if ‘‘drugged
. . . .’’ He made unsubstantiated allegations of ‘‘gross
incompetence’’ and a ‘‘collusion’’ between the court
and the defendant’s counsel. Our review of the audio
recording of the trial proceedings revealed several
instances where the plaintiff also made gratuitous
remarks, sarcastic grunts and audible sighs in response
to the court’s rulings.
During the trial, the court explained that its role was
to manage the proceedings and expressly remarked that
its goal was to conclude the case on the merits. The
court noted its willingness to modify the manner in
which the plaintiff testified, if necessary, offered sug-
gestions on how to question witnesses and present evi-
dence so that it could be admitted, and provided the
plaintiff with detailed explanations of its evidentiary
rulings. The court, however, did caution that it could
not take the time to educate the plaintiff on our rules
of evidence at the expense of the jury’s time. At one
point, in an apparent effort to move the trial along, it
ordered the plaintiff to create an outline of his tes-
timony.
The court also employed a series of progressive steps
in an effort to address the plaintiff’s untoward behavior.
It started with verbal warnings and reminders to avoid
‘‘speaking objections.’’ It continually instructed the
plaintiff to cease commenting on evidentiary rulings,
interrupting the court and making insulting or disparag-
ing remarks. On the second day of trial, the court
advised the plaintiff that he could face sanctions, includ-
ing dismissal, if this behavior continued. It stated that
the plaintiff would be fined if he continued with his
refusal to comply with the court’s orders. After several
warnings, the court fined the plaintiff on the third and
fourth days of the trial for his refusal to follow its
instructions and his persistence in commenting on its
evidentiary rulings. The court advised the plaintiff on
multiple occasions that dismissal of the case was an
option it would consider if he continued with his
actions.
We iterate that the sanction of dismissal does not
constitute an abuse of discretion ‘‘where a party shows
a deliberate, contumacious or unwarranted disregard
for the court’s authority . . . .’’ (Internal quotation
marks omitted.) Millbrook Owners Assn., Inc. v. Hamil-
ton Standard, supra, 257 Conn. 16–17; Fox v. First
Bank, supra, 198 Conn. 39. The plaintiff’s conduct, con-
sidered in its entirety, satisfied this standard. The plain-
tiff did not demonstrate any mitigating factors for his
actions during the trial. Cf. Usowski v. Jacobson, 267
Conn. 73, 93–95, 836 A.2d 1167 (2003) (in each instance
where plaintiff failed to comply with order of court,
mitigating factor was present, and thus conduct did
not evince contumacious or unwarranted disregard for
court’s authority and there was not a pattern of abuse
so egregious as to warrant dismissal). Additionally, the
court’s use of a series of escalating disciplinary steps
to compel the observance of its orders proved unsuc-
cessful, leaving dismissal as a last resort, and therefore
the only reasonable remedy. The court’s repeated warn-
ings, suggestions and fines had no impact on the plain-
tiff, as he ignored the court’s admonitions and
continued to delay the trial. See Pavlinko v. Yale-New
Haven Hospital, supra, 192 Conn. 144–45 (dismissal
was only viable sanction where plaintiff administrator
of estate removed hospital records of his decedent and
refused to answer questions about integrity and reliabil-
ity of those records in medical malpractice action);
see also Fox v. First Bank, supra, 40 (court afforded
plaintiff several chances to comply with payment orders
before dismissing her case); cf. D’Ascanio v. Toyota
Industries Corp., supra, 309 Conn. 683–84 (after dishon-
est conduct of plaintiff’s expert, court could have struck
his testimony or granted request for continuance or
mistrial rather than dismiss the case). Simply put, the
plaintiff’s continuing and deliberate misconduct, for
which he bears sole responsibility, demonstrated such
deliberate disregard for the court’s orders as to warrant
dismissal. See Millbrook Owners Assn., Inc. v. Hamil-
ton Standard, supra, 14; cf. D’Ascanio v. Toyota Indus-
tries Corp., supra, 679–82 (dismissal of case constituted
abuse of discretion where plaintiffs were not complicit
in dishonest and deceitful conduct of expert witness,
objectionable conduct was isolated event and not a
series of actions done in disregard of court’s authority
and plaintiff was not given opportunity to rectify situa-
tion). We conclude, therefore, that the court did not
abuse its discretion in dismissing the plaintiff’s case.
We now briefly address the remainder of the claims
raised by the plaintiff in this appeal. First, he claims that
the court erred in dismissing the case by not adhering to
stare decisis standards. Specifically, the plaintiff quoted
language from D’Ascanio v. Toyota Industries Corp.,
supra, 309 Conn. 670–72, arguing that the court did
not follow the controlling authority from our Supreme
Court. We are not persuaded by these arguments, many
of which we have addressed in this opinion, and con-
clude that the court’s dismissal did not conflict with
the D’Ascanio case.27 Accordingly, the plaintiff’s claim
regarding stare decisis is without merit.
Next, the plaintiff claims that the court erred in dis-
missing the case on the basis of arguments set forth in
his motion to reargue and his motions for a mistrial,
which alleged judicial bias.28 In the motion for reargu-
ment, the plaintiff assumed that the dismissal followed
from a finding of contempt pursuant to General Statutes
§§ 51-33 and 51-33a, and Practice Book § 1-14. This
assumption, however, is incorrect. The dismissal was
based on the court’s inherent authority to compel obser-
vance of its rules and to deal with continuing miscon-
duct. The plaintiff’s contempt arguments, therefore, are
inapplicable to the present case, and therefore are with-
out merit.
The plaintiff also relied on the Code of Judicial Con-
duct and made allegations regarding the court’s unwill-
ingness to recuse itself or grant a mistrial. After a careful
review of these arguments, we conclude that they are
wholly without merit. First, we disagree with the plain-
tiff’s blanket assertion that the court failed to consider
his motions for recusal and for a mistrial. Second, we
also are not persuaded that the court improperly failed
to grant his repeated requests for a different trial judge.
The mere fact that the court ruled adversely to the
plaintiff does not equate to a showing or appearance
of bias necessitating recusal. ‘‘[A]dverse rulings do not
themselves constitute evidence of bias. . . . Obvi-
ously, if a ruling against a party could be used as an
indicia of bias, at least half of the time, every court
would be guilty of being biased against one of two
parties. Moreover, the fact that a trial court rules
adversely to a litigant, even if some of these rulings
were determined on appeal to have been erroneous,
[still] does not demonstrate personal bias. . . . The
fact that the plaintiff strongly disagrees with the sub-
stance of the court’s rulings does not make those rulings
evidence of bias. In the present case, the plaintiff’s
argument of bias is completely unsubstantiated by the
trial record.’’ (Citation omitted; internal quotation
marks omitted.) Burns v. Quinnipiac University, 120
Conn. App. 311, 317, 991 A.2d 666, cert. denied, 297
Conn. 906, 995 A.2d 634 (2010); see also Tracey v. Tra-
cey, 97 Conn. App. 278, 284–85, 903 A.2d 679 (2006)
(in addition to adverse rulings, vague and unverified
assertions of opinion, speculation and conjecture can-
not support claim of judicial bias).
The plaintiff next argues that the court’s dismissal
was improper because there was no misconduct that
occurred in the presence of the jury. Although much of
the continuing misconduct that resulted in the dismissal
occurred outside of the presence of the jury, there were
instances where the plaintiff raised his voice or chal-
lenged the court’s evidentiary rulings in front of the
jury. Nevertheless, the absence of the jury when certain
acts of misconduct occurred did not deprive the court of
its authority to sanction the plaintiff for his continuing
misconduct during the trial and lack of cooperation
with the court. See generally State v. Jones, 281 Conn.
613, 625–37, 916 A.2d 17 (defendant, outside presence
of jury, argued with court and during his removal from
court engaged in physical altercation with marshals and
this conduct constituted waiver of right to be present
at trial), cert. denied, 552 U.S. 868, 128 S. Ct. 164, 169
L. Ed. 2d 112 (2007); see also Pavlinko v. Yale-New
Haven Hospital, supra, 192 Conn. 145.
Finally, the plaintiff claims that the dismissal violated
his right to procedural due process and cites to article
first, §§ 1029 and 19,30 of our state constitution. This
portion of the plaintiff’s appellate brief essentially
restates his previous arguments, which we previously
have rejected, and fails to adequately brief his constitu-
tional claim. See, e.g., State v. Buhl, 321 Conn. 688, 724,
138 A.3d 868 (2016).
The judgment is affirmed.
In this opinion the other judges concurred.
1
As stated in the table of contents in his appellate brief, the plaintiff set
forth the following issues: ‘‘(1) Did the Court err in dismissing the case
during trial based on [November 4, 2015] statements? (2) Did the Court err
in Dismissing the Case based on stare decisis standards? (3) Did the Court
err in Dismissing the Case based on Rules and Laws as argued in Reargument
and Motions for Mistrial? (4) Did the Court violate plaintiff’s . . . rights to
due process in dismissing the case?’’
2
General Statutes § 13a-138 provides: ‘‘(a) Persons authorized to construct
or to repair highways may make or clear any watercourse or place for
draining off the water therefrom into or through any person’s land so far
as necessary to drain off such water and, when it is necessary to make any
drain upon or through any person’s land for the purpose named in this
section, it shall be done in such way as to do the least damage to such land.
‘‘(b) Nothing in this section shall be so construed as to allow the drainage
of water from such highways into, upon, through or under the yard of any
dwelling house, or into or upon yards and enclosures used exclusively for
the storage and sale of goods and merchandise.’’ See generally Glasson v.
Portland, 6 Conn. App. 229, 234–35, 504 A.2d 550 (1986).
3
In its memorandum of decision addressing the parties’ motions for sum-
mary judgment, the court explained that the plaintiff’s claim of breach of
fiduciary duty incorporated the allegations set forth in count one and further
alleged that the defendant had failed to return property to the plaintiff’s
grandfather after it was no longer used as a public school. The plaintiff
claimed that this failure, which occurred in 1945, constituted a breach of
fiduciary duty.
4
At oral argument before this court, both parties expressly agreed that
the court should listen to the audio recordings of the trial. Therefore, in
addition to reviewing the transcripts, we also have listened to portions of
these recordings.
5
Specifically, the court stated: ‘‘Mr. Emerick, I’m sorry. I just don’t think
that’s possible because these courtrooms are used all day long at various
times, by different judges or magistrates who may rely on the Practice Book.
The Practice Book has to be present in court within the courtroom, so—
certainly, the library, I believe the library is open. You’re welcome to go
down during recess and check what you may need in the library.’’
6
Specifically, the plaintiff stated: ‘‘[D]o you have any case law for that,
because that’s bizarre. I have marked my exhibits, where I want to read
from, and you’re telling me that I can’t use that. I have to go by an unmarked
copy and somehow flip through four or five hundred pages and find the
spot, without looking to see where it is here, because—or I can run down,
see where it is here, then run back and then look at it. We’re making this
way more complicated, and it’s not toward the ends of justice whatsoever.
It’s making it mind-boggling confusion and unnecessary movement when
it could be done so quickly otherwise. . . . We’re making this way too
complicated . . . .’’
7
Specifically, the plaintiff stated: ‘‘But I will note that typically, the counsel,
when a party is represented by a lawyer, they typically have the advantage
of being able to sit at their table and organize everything, and I won’t be
able to do that, presenting my case from the witness stand, especially if I
ask myself questions, without being able to look at everything first and then
ask a question. I just—I note there is—you’re imposing a hardship on a self-
represented party representing themselves that a represented party
doesn’t have.’’
8
Both during the trial and on appeal to this court, the plaintiff suggested
that the court had sustained the majority of the objections raised by the
defendant’s counsel and that these rulings support his claims of judicial
bias in favor of parties represented by counsel, and against self-represented
parties, as well as bias against him personally. The number of the objections
by the defendant’s counsel that were sustained by the court, without more
direct and substantive evidence of bias, is not a recognized way to demon-
strate judicial bias. See, e.g., Burns v. Quinnipiac University, 120 Conn.
App. 311, 317, 991 A.2d 666, cert. denied, 297 Conn. 906, 995 A.2d 634 (2010).
Additionally, the plaintiff’s conduct in revisiting matters that had been ruled
on previously by the court resulted in many of the objections by the defen-
dant’s counsel that the court again sustained. For example, on October 28,
2015, the court iterated that photographs containing hearsay captions and
descriptions would not be admitted into evidence. It further stated that the
plaintiff had failed to offer ‘‘clean’’ copies of the photographs and, as a
result, would ‘‘have to accept the consequences.’’ Finally, it noted: ‘‘If you
persist in offering this exhibit with various arrows and commentaries, and
without establishing a proper foundation for the admission of each photo-
graph . . . then the exhibit will be rejected.’’
9
Later that day, and outside of the presence of the jury, the plaintiff again
accused the defendant’s counsel of lying.
10
The following colloquy occurred:
‘‘The Court: I want you to answer the question I just asked you.
‘‘[The Plaintiff]: Could you please repeat it.
‘‘The Court: I asked you how long you plan to testify.
‘‘[The Plaintiff]: Well, I conversed and gotten opinions from probably half
a dozen very high lawyers. I cannot give their names, or they will never
help me.
‘‘The Court: Mr. Emerick, I’m not interested—
‘‘[The Plaintiff]: And the ability to submit a document—
‘‘The Court: I’m not interested.
‘‘[The Plaintiff]: I’m not done talking. The ability to submit a document
that I created to the [defendant] and gave them is well within my right.
‘‘The Court: Mr. Emerick, Mr. Emerick, you will not shout at me. You will
not disrespect opposing counsel. You will not keep doing that.
‘‘[The Plaintiff]: You interrupt me all the time.
‘‘The Court: That is my privilege, to interrupt you. When you become the
judge, then you can interrupt. But in the meantime, you’re not the judge.
And either we maintain proper decorum in this courtroom or you’re going
to have other problems. It is your choice. You could have retained any
number of lawyers that you may have conferred with concerning this case.
And until or unless you do, I have no interest in hearing anything about
what any other person, what any lawyer has to say on your behalf.’’
11
As the basis of his motion for a mistrial, the plaintiff alleged that he
could not rely on the court’s competency or impartiality.
12
The following colloquy occurred between the court and the plaintiff:
‘‘The Court: You will not talk when I’m talking, Mr. Emerick. You will not
talk when I’m talking. You will not accuse me of things. You will not accuse
me of things.
‘‘[The Plaintiff]: I’ve asked—I’m raising a—
‘‘The Court: I am sworn to uphold the laws—
‘‘[The Plaintiff]: I don’t believe it.
‘‘The Court: —and constitution of the state of Connecticut and United
States constitution. You will not accuse me of disrespecting the law. And
in the course of doing that, that is my job. That is not what I’m charged
with. I’m charged with making findings concerning the legal issues in this
case, including evidentiary rules. If you don’t like them, and this case turns
out adversely to you, then you can pursue whatever remedies that you may
have available to you. But in the meantime, we’re going to do things in a
proper way.
‘‘[The Plaintiff]: That’s your opinion.
‘‘The Court: In this courtroom—
‘‘[The Plaintiff]: Like I said, the attorneys I talked to state it’s no problem
at all submitting a document that you gave to the [defendant].
‘‘The Court: —Mr. Emerick, that is the only opinion that counts. Don’t
push me, Mr. Emerick.
‘‘[The Plaintiff]: I would like to recall the statement that I made previously,
that when I first heard you were going to be on the case, I asked for a
different judge—
‘‘The Court: Mr. Emerick—
‘‘[The Plaintiff]: —because I feel that you’re—
‘‘The Court: Mr. Emerick, it’s just not possible. It’s just not possible. So,
either you do things the way you’re supposed to do—
‘‘[The Plaintiff]: I am.
‘‘The Court: —get your case done, and you respect this jury and you
respect this process or we’re going to have a very rough road here.
‘‘[The Plaintiff]: The attorney is getting away with misconduct.
‘‘The Court: That is not true.
‘‘[The Plaintiff]: Oh, it is.
‘‘The Court: Because an attorney is representing or seeking to represent
a client, you don’t like it, that, you know—this is an adversarial process,
Mr. Emerick.
‘‘[The Plaintiff]: I know how to lay a foundation.
‘‘The Court: You don’t have to like it.
‘‘[The Plaintiff]: I was going into laying a foundation.
‘‘The Court: It’s not—she’s not here to please you and do things the way you
want her to do them. She’s here to represent a client. She has a professional
responsibility to her client and she had, as an officer of the court, she has
a responsibility to the court. So, until or unless you have something definitive
to say, you will not say it again. You will not accuse opposing counsel of lying.
If you do it again, then I’m going to have seriously consider sanctioning you.’’
13
The following colloquy occurred between the court and the plaintiff:
‘‘[The Plaintiff]: I asked to be allowed to put into evidence things that
anybody could put into evidence, except in front of you in this court by a
self-represented party. A document given to everybody that they have, and
I’m not allowed to put it into evidence? You need to go back to law school.
‘‘The Court: Mr. Emerick, being a self-represented party does not give
you a license to violate the rules of appropriate—
‘‘[The Plaintiff]: I do not.
‘‘The Court: —decorum in the courtroom. It does not give you a license
for the court to ignore the rules of evidence in your favor, and other rules
of civil procedure.
‘‘[The Plaintiff]: You talk in gibberish half the time.
‘‘The Court: It does not give you a license, sir.
‘‘[The Plaintiff]: I listen to you talk and it’s like gibberish I’m hearing,
literally gibberish, and I’ve also gotten that opinion from other attorneys
as well, but I can’t say their names.’’ (Emphasis added.)
14
The plaintiff’s persistent behavior caused to the court to provide the
jury with a general explanation as to why these photographs were not
admissible evidence and to instruct the plaintiff to cease this line of tes-
timony.
15
The court stated: ‘‘And I just want to say to you, Mr. Emerick, that the
fact that you are self-represented does not give you license to be disrespectful
to the court or to opposing counsel.’’
16
Specifically, the following colloquy occurred:
‘‘[The Plaintiff]: I would like to—one more time, [make] a motion for
mistrial. I think this is so grossly bias—
‘‘The Court: Denied.
‘‘[The Plaintiff]: —it defies logic in every standard, every standard.
‘‘The Court: I’m sorry. Mr. Emerick, at some point, you have to conclude
your testimony.’’
17
The court stated: ‘‘You just made a gratuitous comment. Take the witness
stand. Plus, this is like the third or fourth time I’ve asked you take the
witness stand. For all that behavior, it’s costing you a hundred dollars. Stop
glaring at me, Mr. Emerick, and take the witness stand. The court notes
that the plaintiff is glaring.’’
18
For example, the court stated: ‘‘Mr. Emerick, we’ve had extensive discus-
sion about exhibit—what exhibits would be admissible and what exhibits
would not be admissible outside the presence of the jury. And there were
certain things that were excluded because they’re not admissible in evidence.
You—I directed you not testify about them just a few minutes ago.
‘‘I’ve repeatedly instructed you, in the course of these proceedings, not
to testify about things that are not in evidence. So, I’m going to strike that—
the last two or three questions concerning things that—reference to certain
photographs that are not in evidence. You can testify—just so the jury
understands—you can testify as to what you observed through your senses
and you can offer photographs, as you have, concerning conditions on
your property.’’
19
Specifically, the defendant’s counsel stated that ‘‘[j]ust before we
recessed, you specifically instructed [the [plaintiff] and ruled that only
injunctive relief is relevant to his intentional infliction of emotional distress
claim. You told him your emotional distress is not in this case. Essentially,
that’s what you told him. He is once again just ignoring your instructions
and not—and abusing the process and prejudicing my client. He is completely
ignoring what you told him before we recessed, to my client’s prejudice.
Emotional distress is not a part of this case; you told him that.’’
20
The defendant’s counsel argued as follows: ‘‘You just instructed him
that this was improper, and he’s not listening to the court and he hasn’t
listened to the court since day one.’’
21
Specifically, the defendant’s counsel stated: ‘‘At this point, I want to
ask that you,—he’s abandoned his claims. He’s abandoned his claims by
willingly ignoring Your Honor’s instructions time and time again. I would
ask for a dismissal. He has ignored what you have told him time and time
again, to my client’s prejudice, so I would ask that you dismiss the case.’’
22
Specifically, the court stated: ‘‘I have directed you in the past not to
accuse or state that the defendant’s lawyer is lying. . . . I’m telling you
again to stop talking. Stop talking. And do not interrupt me and do not
speak over me.’’
23
Specifically, the court stated: ‘‘Well, I’ve reviewed the motion, and I
don’t think it has stated any sufficient grounds for a mistrial, so the motion
is denied for judicial recusal. Because rulings may be adverse, it doesn’t
necessarily mean, although they may be—when a ruling is adverse, and
although based on law, sometimes it is difficult to accept and digest. And
I can understand, Mr. Emerick, why you may be frustrated, but I—but be
that as it may, there are not sufficient grounds for either a mistrial—it’s not
appropriate in the middle of a trial to move for recusal, unless there was
something—you know, there’s just not basis for it.’’
24
Specifically, the court stated: ‘‘You need to ask this witness, focus your
questioning on what this witness did in this particular case, within her area
of expertise, and what opinions she may have, based on that, based on that,
a proper foundation, what opinions she may have that are relevant to the
issues in this case. That’s what you need to do.’’
25
At this point, the court elaborated its ruling as follows: ‘‘Ladies and
gentlemen, I’m going to sustain the objection. I instructed [the plaintiff],
both in your presence and outside of your presence, not to make an issue
of this affidavit [exhibit 13], and I just want to explain to you a little bit
more about the purpose of this affidavit. There are other proceedings that
do take place in court, leading up to trial, where an affidavit is appropriate,
and it has a limited utility. It doesn’t mean that that affi—the reason that
that affidavit, one of the reasons that that may not come into evidence
at trial, is that—and one of the two primary reasons; one is that it’s a
hearsay document.
‘‘It’s a document that’s made out of court, and to some extent—and it’s
not subject to cross-examination. So, in terms of the evidence that is allowed
in the trial, there is a back and forth that is allowed by each side, in an
effort to get to—as I will later instruct you—in an effort to assist the jury
in reaching the truth.
‘‘We get to hear both sides of any different aspect of evidence. An affidavit
is hearsay and that, the fact that it’s not subject to cross-examination, make
it less reliable than testimony that you hear in court, which is subject to
cross-examination.
‘‘So, I don’t want you to feel as though you’re missing out on anything.
The witness is here, and she is available to testify, and there are very specific
rules of evidence that provide that in the context of a jury trial, it is not
usual for a—and it’s not allowable, as a principle of evidence, for an affidavit
of a witness, particularly a witness who is here to testify, to have an affidavit
come into evidence.
‘‘It, in effect, would allow the witness to testify twice, once subject to
cross-examination and once not subject to cross examination. So, I just
want you to understand that the rules—I know you’ve heard me recite rules
at various times for various reasons. And these rules have evolved and have
been developed and written and amended over a period of time, and they
exist for reasons that are rooted in the law. So, I just want to make sure
that you understand that.’’
26
After a careful review of the record, we are unable to identify a specific
instance where the plaintiff verbally abused the court’s staff.
27
Specifically, the plaintiff quotes language from D’Ascanio v. Toyota
Industries Corp., supra, 309 Conn. 663, arguing that he had complied with
‘‘every rule and order’’ of the trial court. (Emphasis omitted.) As we have
extensively detailed, the record contradicts the plaintiff’s assertion. He next
contends that the court could have permitted the proceedings to conclude,
then considered the defendant’s motion for a directed verdict. In his view,
this would have been preferable to ‘‘a dismissal read with a smile from a
statement . . . .’’ We have concluded, to the contrary, that the court acted
well within its discretion by dismissing the case as a sanction for his conduct.
Therefore, this contention is without merit. The plaintiff again asserts that
there was ‘‘no disobedience or contumacious conduct during the trial.’’ We
simply refer to our detailed description of the events before the trial court
to reject this claim.
28
We note that the plaintiff claimed in the motion for reargument that
the defendant did not request the sanction of dismissal. The record does
not support this statement. The defendant’s counsel did, in fact, ask the
court to dismiss the case on more than one occasion.
29
‘‘The Connecticut constitution, article first, § 10, provides: All courts
shall be open, and every person, for an injury done to him in his person,
property or reputation, shall have remedy by due course of law, and right
and justice administered without sale, denial or delay. The current article
first, § 10, originally appeared in article first, § 12, of the constitution of
1818.’’ (Internal quotation marks omitted.) Binette v. Sabo, 244 Conn. 23,
27–28 n.6, 710 A.2d 688 (1998).
30
Article first, § 19, of the constitution of Connecticut, as amended by
article four of the amendments, provides in relevant part: ‘‘The right of trial
by jury shall remain inviolate . . . .’’