Estela v. Bristol Hospital, Inc. ( 2016 )

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JOSE A. ESTELA v. BRISTOL HOSPITAL, INC.
(AC 36526)
Gruendel, Alvord and Prescott, Js.*
Argued December 1, 2015—officially released April 26, 2016
(Appeal from Superior Court, judicial district of New
Britain, Swienton, J.)
Joseph B. Burns, with whom, on the brief, were Pro-
loy K. Das, Mary Alice Moore Leonhardt and Daniel
J. Csuka, for the appellant (plaintiff).
Michael G. Rigg, for the appellee (defendant).
Opinion
PRESCOTT, J. The plaintiff, Jose A. Estela, appeals
from the trial court’s denial of his motion to open a
judgment of nonsuit. For the reasons that follow, we
dismiss the plaintiff’s appeal as moot.
The following facts, as found in the record, and proce-
dural history are relevant to this appeal. On November
17, 2011, the plaintiff, who is a doctor of internal medi-
cine, brought the underlying action against the defen-
dant, Bristol Hospital, Inc., where he had medical staff
privileges, seeking damages for income lost because of
an alleged campaign by the defendant to divert patients
under the plaintiff’s care to hospitalist physicians
employed by the defendant. On May 30, 2012, the defen-
dant served written discovery requests upon the plain-
tiff. The plaintiff responded to these requests on
September 12, 2012. On September 18, 2012, the defen-
dant moved to compel the plaintiff to produce certain
evidence that it claimed the plaintiff had improperly
withheld. This evidence included tax returns, as well
as answers to interrogatories identifying the plaintiff’s
patients that the defendant allegedly stole and his mone-
tary damages for lost income associated with these
patients.
After oral argument on the motion to compel, on
February 8, 2013, the plaintiff submitted supplemental
interrogatory responses and produced additional docu-
ments. In those supplemental interrogatory responses,
the plaintiff also promised to provide additional missing
materials ‘‘as soon as practicable.’’ On September 27,
2013, however, the defendant filed a motion for nonsuit
because it claimed that it had not received additional
disclosures. On October 25, 2013, the plaintiff filed an
opposition to the motion, protesting that he could not
provide either the patient information, or the requested
report from his expert on damages, because he lacked
access to the data required to generate it. Instead, the
plaintiff claimed that this data was in the defendant’s
possession. The court, however, granted the defen-
dant’s motion for nonsuit on October 28, 2013, without
issuing a memorandum of decision.
After the court granted the motion, on November 1,
2013, the plaintiff filed a motion to reconsider and
vacate the order granting the motion for nonsuit. In his
motion, he again maintained that his failure to produce
the requested discovery materials was the result of the
defendant’s improper withholding of that data. The
defendant filed an opposition to the plaintiff’s motion,
in which it again stated that the relevant information
was in the plaintiff’s possession. The court denied the
motion to reconsider on November 18, 2013.
On November 27, 2013, the plaintiff filed the motion
to open the judgment of nonsuit that is the subject of
this appeal. In the motion to open, the plaintiff argued
that the factors set forth in Higgins v. Karp, 243 Conn.
495, 508, 706 A.2d 1 (1998), supported opening the judg-
ment of nonsuit. In essence, the plaintiff argued that
his failure to produce the tax returns for the requested
years was an oversight, that his failure to produce the
requested expert report on the plaintiff’s losses was
premised in turn on the defendant’s own failure to pro-
duce the requisite patient information, and that the ‘‘gru-
eling trial schedule’’ of the plaintiff’s attorney was partly
responsible for the various delays at issue. The plaintiff
also argued that the defendant had not suffered any
prejudice and would suffer none if the court opened
the judgment of nonsuit.
The defendant filed an objection to the motion to
open on December 2, 2013. In the objection, the defen-
dant argued that the plaintiff’s motion to open should
be denied because the plaintiff had not filed the affidavit
required by General Statutes § 52-212 (b) and Practice
Book § 17-43, and because the judgment of nonsuit had
not been rendered because of mistake, accident, or
other reasonable cause, but, rather, because the plain-
tiff had not complied with his discovery obligations.
After filing his motion to open, the plaintiff filed two
successive notices of compliance. The first, filed on
December 5, 2013, detailed his alleged compliance with
the defendant’s request for disclosure of his 2003 and
2004 tax returns; the second, filed on December 11,
2013, stated that he had filed a preliminary expert report
detailing his losses on the basis of the information that
he claimed was available to him, and that he both could
not and would not produce a final version of the report
until he received the requested discovery regarding
patient information from the defendant. The plaintiff
also filed the affidavit required by General Statutes § 52-
212 (b) and Practice Book § 17-43 (a) in support of his
motion to open on December 12, 2013.
On December 16, 2013, the court denied the plaintiff’s
motion to open. In a memorandum of decision accom-
panying the order, the court explained that, even if the
plaintiff had timely filed his affidavit, the court would
still have denied the motion to open because he ‘‘failed
to establish the second requirement’’ for opening a judg-
ment of nonsuit because he failed to show that ‘‘he
was prevented from prosecuting this matter because of
mistake, accident or other reasonable cause.’’ (Internal
quotation marks omitted.) Specifically, the court
‘‘[found] no merit in the plaintiff’s arguments or expla-
nations’’ as to why he had failed to produce the discov-
ery repeatedly requested of him. The court noted that
the defendant’s filing of notices of compliance after
filing his motion to open clearly evidenced his prior
failure to comply with discovery orders, and further
that the plaintiff had conceded in his own motion that
he had deliberately delayed his own review and analysis
of materials in his possession because he anticipated
receiving patient information from the defendant. This
appeal followed.1
After the plaintiff filed this appeal, the defendant filed
a motion to dismiss as untimely any portion of the
appeal purporting to challenge the judgment of nonsuit
because the appeal was filed after the appeal period in
which to challenge the judgment of nonsuit had expired,
and the filing of the motion to open following the denial
of the motion for reconsideration did not give rise to
a new appeal period. See Practice Book § 63-1 (e).2 This
court granted the motion to dismiss on April 10, 2014.
As a result, because the plaintiff failed to properly
appeal the judgment of nonsuit, he is limited in this
appeal to challenging the court’s exercise of discretion
in denying the motion to open and cannot challenge
the propriety of its decision granting the motion for a
judgment of nonsuit. See Tiber Holding Corp. v.
Greenberg, 36 Conn. App. 670, 671, 652 A.2d 1063 (1995)
(‘‘When a motion to open is filed more than twenty
days after the judgment, the appeal from the denial of
that motion can test only whether the trial court abused
its discretion in failing to open the judgment and not
the propriety of the merits of the underlying judgment.
. . . This is so because otherwise the same issues that
could have been resolved if timely raised would never-
theless be resolved, which would, in effect, extend the
time to appeal.’’ [Citation omitted; internal quotation
marks omitted.]).
On appeal, the plaintiff claims that the court improp-
erly denied the motion to open the judgment of nonsuit
because it violated this court’s policy of bringing about
a trial on the merits of disputes wherever possible and
because the denial of the motion to open deprived the
plaintiff of his state constitutional right to pursue a
remedy for his injury through Connecticut’s courts. The
defendant presents several responsive arguments, chief
among which is its contention that the plaintiff’s failure
on appeal to address the trial court’s finding that the
plaintiff failed to satisfy the second requirement of § 52-
212 (a)3—namely, that the plaintiff ‘‘was prevented by
mistake, accident or other reasonable cause from prose-
cuting the action’’—renders the appeal moot. Because
we agree with the defendant on this point, we dismiss
the appeal as moot.
‘‘Mootness raises the issue of a court’s subject matter
jurisdiction and is therefore appropriately considered
even when not raised by one of the parties. . . . Moot-
ness is a question of justiciability that must be deter-
mined as a threshold matter because it implicates [a]
court’s subject matter jurisdiction . . . . We begin
with the four part test for justiciability established in
State v. Nardini, 187 Conn. 109, 445 A.2d 304 (1982).
. . . Because courts are established to resolve actual
controversies, before a claimed controversy is entitled
to a resolution on the merits it must be justiciable.
Justiciability requires (1) that there be an actual contro-
versy between or among the parties to the dispute . . .
(2) that the interests of the parties be adverse . . .
(3) that the matter in controversy be capable of being
adjudicated by judicial power . . . and (4) that the
determination of the controversy will result in practi-
cal relief to the complainant. . . . [I]t is not the prov-
ince of appellate courts to decide moot questions,
disconnected from the granting of actual relief or from
the determination of which no practical relief can fol-
low . . . . In determining mootness, the dispositive
question is whether a successful appeal would benefit
the plaintiff or defendant in any way.’’ (Emphasis in
original; internal quotation marks omitted.) Bombero v.
Bombero, 160 Conn. App. 118, 135, 125 A.3d 229 (2015).
In his appellate brief, the plaintiff does not challenge
the court’s finding that he failed to show that he was
prevented from prosecuting his action because of mis-
take, accident, or other reasonable cause. Instead, his
argument is primarily limited to a claim that a judgment
of nonsuit should not have been rendered against him
because he met his discovery obligations. A showing
that a plaintiff was prevented from prosecuting an
action because of mistake, accident, or other reason-
able cause, however, is required to demonstrate that a
motion to open a judgment of nonsuit should be
granted. ‘‘[T]here is a two-pronged test for setting aside
a judgment rendered after a nonsuit. . . . There must
be a showing (1) that a good cause of action, the nature
of which must be set forth, existed at the time judgment
was rendered, and (2) that the plaintiff was prevented
from prosecuting the action because of mistake, acci-
dent or other reasonable cause.’’ (Citation omitted.)
Conway v. Hartford, 60 Conn. App. 630, 633, 760 A.2d
974 (2000); see General Statutes § 52-212 (a). ‘‘Since the
conjunctive ‘and’ meaning ‘in addition to’ is employed
between the parts of the two prong test, both tests must
be met.’’ Costello v. Hartford Institute of Accounting,
Inc., 193 Conn. 160, 167, 475 A.2d 310 (1984).
The plaintiff’s appellate brief does not challenge the
court’s finding that the plaintiff failed to make the sec-
ond of these required showings. ‘‘[W]here alternative
grounds found by the reviewing court and unchallenged
on appeal would support the trial court’s judgment,
independent of some challenged ground, the challenged
ground that forms the basis of the appeal is moot
because the court on appeal could grant no practical
relief to the complainant.’’ Green v. Yankee Gas Corp.,
120 Conn. App. 804, 805, 993 A.2d 982 (2010); see also
State v. Abushaqra, 151 Conn. App. 319, 325–26, 96
A.3d 559 (2014). This court, therefore, cannot afford
the plaintiff any practical relief because, even if he were
to succeed on his claims, he would not be entitled to
have granted his motion to open the judgment of non-
suit. Accordingly, the appeal is moot, and this court
lacks subject matter jurisdiction to consider the plain-
tiff’s claims. See Bombero v. Bombero, supra, 160 Conn.
App. 135.
The plaintiff argues that the case is not moot because
there exists an actual and justiciable controversy
between the parties concerning the trial court’s decision
to deny the motion to open, the reversal of which would
afford the plaintiff practical relief because it would
enable his claims to be heard on the merits. The plaintiff
also suggests that the case is not moot because the
court’s finding that the plaintiff did not establish a
proper ground for opening the judgment under § 52-
212 (a) was a ‘‘nullity’’ insofar as it followed the court’s
finding that it was ‘‘without authority to set aside the
nonsuit.’’ The plaintiff argues that this latter statement
by the court implicated its subject matter jurisdiction,
and that the court’s finding that the plaintiff had not
established a proper ground to open the judgment,
therefore, was merely advisory in nature and did not
need to be challenged on appeal.
Neither argument is persuasive. The first argument
is not responsive in that it misses the basic point that
even if this court were to decide the plaintiff’s claims
favorably to him, it still would not be able to afford
him practical relief. The second argument is mistaken
because it conflates the terms ‘‘jurisdiction’’ and
‘‘authority.’’ Our Supreme Court, however, has distin-
guished carefully between the two. See Kim v. Mag-
notta, 249 Conn. 94, 102–103, 733 A.2d 809 (1999) (‘‘[t]he
better construction of [General Statutes § 52-212a] is
to characterize it as a limitation on the trial court’s
general authority to grant relief from a judgment, not
as a limitation on its personal jurisdiction over the
parties’’ [emphasis added]). The court ruled only that
it lacked authority to grant the motion in the absence
of a timely filed affidavit, not that it lacked jurisdiction
over the motion to open. Contrary to the plaintiff’s
interpretation of the decision on his motion, therefore,
the trial court’s subsequent finding that the plaintiff had
failed to establish one of the grounds required by § 52-
212 (a) was not a nullity, but rather an adequate, inde-
pendent ground for denying the motion. The plaintiff’s
failure to challenge on appeal the finding that ‘‘ ‘mistake,
accident, or other reasonable cause’ ’’ did not prevent
him from prosecuting the action, therefore, renders his
claim moot.
The appeal is dismissed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The defendant filed a cross appeal in this case, which was dismissed
for lack of aggrievement because the defendant had received the relief it
requested, via the judgment of nonsuit. See Practice Book § 61-8.
2
Practice Book § 63-1 (e) provides: ‘‘Any party filing more than one motion
that, if granted, would render the judgment, decision or acceptance of the
verdict ineffective, shall file such motions simultaneously insofar as simulta-
neous filing is possible.’’
There is no reason why the plaintiff’s motion to open could not have been
filed at the time that he filed his motion for reconsideration of the judgment
of nonsuit. Both of these motions sought as their ultimate relief to have the
court vacate the judgment of nonsuit. The purpose of Practice Book § 63-
1 (e) is to prevent the filing of serial motions that would have the effect of
repeatedly extending the appeal period.
3
General Statutes § 52-212 (a) provides: ‘‘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,
and the case reinstated on the docket, on such terms in respect to costs as
the court deems reasonable, 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 the passage of the decree, and that the
plaintiff or defendant was prevented by mistake, accident or other reason-
able cause from prosecuting the action or making the defense.’’