Ugalde v. Saint Mary's Hospital, Inc. , 182 Conn. App. 1 ( 2018 )

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MARIA UGALDE, ADMINISTRATRIX (ESTATE OF
RICHARD UGALDE) v. SAINT MARY’S
HOSPITAL, INC., ET AL.
(AC 39343)
Sheldon, Bright and Harper, Js.
Syllabus
The plaintiff administratrix of the estate of the decedent sought to recover
damages for medical malpractice from the defendant hospital and the
defendant surgeon in connection with the allegedly wrongful death of
the decedent. The trial court granted the hospital’s motion to dismiss
the action against it and rendered judgment thereon. The hospital had
claimed that the plaintiff’s complaint was supported by an opinion letter
from a health care provider that was legally insufficient under the appli-
cable statute (§ 52-190a [a]). The plaintiff then filed a request for leave
to amend the complaint and attached an amended opinion letter to
the proposed amended complaint. The trial court denied the plaintiff’s
request for leave to amend the complaint, concluding that it had been
filed beyond the statute of limitations for wrongful death actions, and
dismissed the action against the hospital on the ground that the court
lacked personal jurisdiction over the hospital because the initial opinion
letter that had been filed with the complaint was legally insufficient.
The trial court also granted the surgeon’s motion for a judgment of
nonsuit and rendered judgment thereon, determining that the plaintiff
had failed to comply with certain of the surgeon’s discovery requests
and the court’s orders to comply with those requests. The court there-
after denied the plaintiff’s motions to set aside the judgment of nonsuit
and to reargue the denial of the motion to set aside the judgment of
nonsuit. On the plaintiff’s appeal to this court, held:
1. The trial court did not err in denying the plaintiff’s request for leave to
amend the complaint or in dismissing her claim against the hospital for
lack of personal jurisdiction; the plaintiff could not amend the complaint
after the expiration of the statute of limitations for wrongful death
actions, as such an approach to actions that are supported by insufficient
opinion letters would circumvent and be inconsistent with the mandate
of the legislature that such actions be dismissed for lack of personal
jurisdiction, and because actions that have been dismissed for want of
personal jurisdiction after the expiration of the statute of limitations
can be saved if they are timely refiled in proper form under the accidental
failure of suit statute (§ 52-592 [a]), the legislature plainly contemplated
that a malpractice action that has been dismissed for not being supported
by a qualifying opinion letter could be saved under § 52-592 (a), after
the expiration of the statute of limitations, by refiling it along with a
proper opinion letter.
2. The trial court did not abuse its discretion in denying the plaintiff’s motion
to reargue the denial of her motion to set aside the judgment of nonsuit;
the plaintiff was afforded multiple opportunities to properly respond to
the surgeon’s discovery requests and the court’s orders that she comply
with those requests, but she failed to do so.
Argued February 8—officially released May 15, 2018
Procedural History
Action to recover damages for the defendants’ alleged
medical malpractice, and for other relief, brought to
the Superior Court in the judicial district of Waterbury,
where the court, Shapiro, J., granted the motion for
a nonsuit filed by the defendant Shady Macaron and
rendered judgment thereon; thereafter, the court denied
the plaintiff’s motion to set aside the judgment of non-
suit; subsequently, the court denied the plaintiff’s
motions for leave to amend the complaint and to rear-
gue the denial of the motion to set aside the judgment
of nonsuit, and granted the named defendant’s motion
to dismiss and rendered judgment thereon, from which
the plaintiff appealed to this court; thereafter, this court
dismissed the appeal as to the defendant Shady
Macaron. Affirmed.
Jeffrey M. Cooper, for the appellant (plaintiff).
Michael R. McPherson, with whom, on the brief, were
Sally O. Hagerty and Ilyssa H. Kelson, for the appellee
(named defendant).
David J. Robertson, with whom were Christopher
H. Blau and, on the brief, Madonna A. Sacco and Mat-
thew M. Sconziano, for the appellee (defendant
Shady Macaron).
Opinion
SHELDON, J. In this medical malpractice action, the
plaintiff, Maria Ugalde, administratrix of the estate of
Richard Ugalde (decedent), appeals from the judgments
of the trial court rendered in favor of the defendants,
Saint Mary’s Hospital, Inc. (hospital), and Shady
Macaron, M.D. On appeal, the plaintiff claims that the
trial court erred (1) in dismissing her claim against the
hospital for failure to file a legally sufficient opinion
letter authored by a similar health care provider, as
required by General Statutes § 52-190a (a); and (2) in
denying her motion to reargue the denial of her motion
to set aside the judgment of nonsuit that had been
rendered against her in favor of Macaron for her failure
to comply with discovery requests.1 We affirm the judg-
ments of the trial court.
In her complaint dated August 6, 2015, the plaintiff
alleged that, in May, 2013, her decedent was treated
at the hospital by Macaron, a general surgeon, who
performed a robot-assisted sleeve gastrectomy upon
him, after which, while he was still hospitalized, he
suffered a postoperative gastric leak that caused his
death. After counsel appeared for both defendants, they
filed the motions which led ultimately to the judgments
that have been challenged on this appeal. We set forth
the procedural history leading to each challenged judg-
ment in turn.
I
The plaintiff first challenges the dismissal of her claim
against the hospital for failure to comply with the
requirements of § 52-190a (a). The plaintiff argues that
the trial court should have permitted her to amend her
complaint—specifically, the opinion letter attached to
her complaint—to add the professional qualifications
of the author of that letter, and thus to cure the defect
contained therein.
The following procedural history is relevant to the
plaintiff’s claim. The plaintiff’s decedent died on May
13, 2013. The plaintiff obtained a ninety day extension
of the statute of limitations to bring this action pursuant
to § 52-190a (b).2 Both defendants were timely served
with the plaintiff’s writ of summons and complaint on
August 7, 2015. The return date in this matter was Sep-
tember 15, 2015.
Attached to the plaintiff’s complaint was a certificate
signed by the plaintiff’s attorney, attesting that he had
a good faith belief that grounds existed for the bringing
of this action on the basis of the defendants’ medical
negligence in their care and treatment of the decedent.
Also accompanying the complaint was an opinion letter,
which stated, inter alia: ‘‘It is my professional medical
opinion based upon my education, training, and 35 years
of surgical experience and surgical critical care, and
to the [decedent] by general surgeon . . . Macaron and
the surgical team under his direction grossly departed
and deviated from the accepted standard of care one
would expect from a general surgeon providing postop-
erative care for a patient undergoing a previous gastro-
intestinal surgical procedure.’’
On October 14, 2015, the hospital filed a motion to
dismiss the plaintiff’s claim against it on the ground
that the court lacked personal jurisdiction over it
because the opinion letter attached to the plaintiff’s
complaint failed to set forth the professional qualifica-
tions of the author of the opinion letter as required by
§ 52-190a (a), and thus that it was legally insufficient.3
On October 20, 2015, in response to the defendants’
motions to dismiss, the plaintiff filed a request for leave
to amend her complaint, seeking to add to the opinion
letter the professional qualifications of its author.
Attached to the proposed amended complaint was an
amended opinion letter, which stated, inter alia, that
the writer’s professional medical opinion was based
‘‘upon my education, training, and 35 years of surgical
experience with surgical critical care, and as a board
certified general, board certified cardiovascular sur-
geon and with previous board certification in surgical
critical care . . . .’’
The hospital objected to the plaintiff’s request for
leave to amend on the ground that it was untimely and
improper in light of its outstanding challenge to the
court’s jurisdiction over it.
On January 19, 2016, the plaintiff filed an objection4
to the hospital’s motion to dismiss on the ground that
her proposed amended opinion letter satisfied the
requirements of § 52-190a (a) and was filed within the
applicable statute of limitations.
By way of a memorandum of decision filed on June
8, 2016, the court denied the plaintiff’s request for leave
to amend her complaint, sustained the hospital’s objec-
tion thereto, and granted the hospital’s motion to dis-
miss due to her failure to comply with the requirements
of § 52-190a (a). The court denied the plaintiff’s request
for leave to amend her complaint because it was
untimely. The court explained that her decedent died
on May 13, 2013, that the statute of limitations for a
wrongful death claim is two years, and that the plaintiff
had obtained a ninety day extension of the statute of
limitations pursuant to § 52-190a (b). Thus, the statute
of limitations on the plaintiff’s claims expired two years
and ninety days from May 13, 2013, which fell on August
11, 2015. The plaintiff filed her request for leave to
amend on October 20, 2015. The court reasoned that
because the plaintiff’s request for leave to amend was
filed beyond the statute of limitations, it could not grant
that request. And because the opinion letter filed with
the plaintiff’s complaint was legally insufficient, the
court lacked personal jurisdiction over the hospital and,
thus, dismissed the plaintiff’s claim against it. This
appeal followed.
We begin by setting forth the following relevant legal
principles. Section 52-190a (a) provides in relevant part
that, in any medical malpractice action, ‘‘[n]o civil
action or apportionment complaint shall be filed to
recover damages resulting from personal injury or
wrongful death occurring on or after October 1, 1987,
whether in tort or in contract, in which it is alleged
that such injury or death resulted from the negligence
of a health care provider, unless the attorney or party
filing the action or apportionment complaint has made
a reasonable inquiry as permitted by the circumstances
to determine that there are grounds for a good faith
belief that there has been negligence in the care or
treatment of the claimant. . . . [T]he claimant or the
claimant’s attorney . . . shall obtain a written and
signed opinion of a similar health care provider, as
defined in [General Statutes §] 52-184c, which similar
health care provider shall be selected pursuant to the
provisions of said section, that there appears to be
evidence of medical negligence and includes a detailed
basis for the formation of such opinion. . . .’’ Section
52-190a requires that the written opinion letter must
have been obtained prior to filing the action and that
the good faith certificate and opinion letter must be
filed when the action commences. Section 52-190a (c)
provides: ‘‘The failure to obtain and file the written
opinion required by subsection (a) of this section shall
be grounds for the dismissal of the action.’’
‘‘[T]he written opinion letter, prepared in accordance
with the dictates of § 52-190a, like the good faith certifi-
cate, is akin to a pleading that must be attached to
the complaint in order to commence . . . the action
[properly]. . . . Accordingly . . . [t]he failure to pro-
vide a written opinion letter, or the attachment of a
written opinion letter that does not comply with § 52-
190a, constitutes insufficient process, which implicates
personal jurisdiction over the defendant. . . . [Dis-
missal on the basis of an inadequate opinion letter is]
without prejudice . . . and even if the statute of limita-
tions has run, relief may well be available under the
accidental failure of suit statute . . . .’’ (Citations omit-
ted; internal quotation marks omitted.) Santorso v.
Bristol Hospital, 308 Conn. 338, 350–51, 63 A.3d 940(2013). ‘‘[W]hen a medical malpractice action has been
dismissed pursuant to § 52-190a (c) for failure to supply
[a legally sufficient] . . . opinion letter by a similar
health care provider required by § 52-190a (a), a plaintiff
may commence an otherwise time barred new action
pursuant to the matter of form provision of [the acciden-
tal failure of suit statute, General Statutes] § 52-592 (a)
only if that failure was caused by a simple mistake
or omission, rather than egregious conduct or gross
negligence attributable to the plaintiff or his attorney.’’
Plante v. Charlotte Hungerford Hospital, 300 Conn. 33,
46–47, 12 A.3d 885 (2011).
The plaintiff does not claim on appeal, nor did she
before the trial court, that the opinion letter that she
filed with her initial complaint complied with the
requirements of § 52-190a (a). She argues, as she did
before the trial court, that she should have been permit-
ted to amend her opinion letter to bring it into compli-
ance with § 52-190a (a), and thus within the jurisdiction
of the court. We are not persuaded.
In Gonzales v. Langdon, 161 Conn. App. 497, 128
A.3d 562 (2015), this court held, as a matter of first
impression, that a legally insufficient opinion letter may
be cured by amendment under two circumstances. The
court held: ‘‘[I]f a plaintiff alleging medical malpractice
seeks to amend his or her complaint in order to amend
the original opinion letter, or to substitute a new opinion
letter for the original opinion letter, the trial court (1)
must permit such an amendment if the plaintiff seeks
to amend as of right within thirty days of the return
day and the action was brought within the statute of
limitations, and (2) has discretion to permit such an
amendment if the plaintiff seeks to amend within the
applicable statute of limitations but more than thirty
days after the return day. The court may abuse its dis-
cretion if it denies the plaintiff’s request to amend
despite the fact that the amendment would cure any
and all defects in the original opinion letter and there
is an absence of other independent reasons to deny
permission for leave to amend.’’ Id., 510.
The plaintiff concedes that she cannot prevail under
the first prong of Gonzales because she failed to request
leave to amend her complaint within thirty days of
the return day. She thus relies on the second prong of
Gonzales, which provides that the court ‘‘has discretion
to permit such an amendment if the plaintiff seeks to
amend within the applicable statute of limitations
. . . .’’ Id. She claims, as she did before the trial court,
that her request for leave to amend was filed within
the applicable statute of limitations because it related
back to the filing of her original complaint, and thus
that she was entitled to amend her complaint pursuant
to this court’s reasoning in Gonzales. In rejecting this
argument, the trial court reasoned as follows: ‘‘[T]he
plaintiff relies on Gonzales v. Langdon, supra, 161
Conn. App. 522, where the court stated, ‘The defendants
in this case never argued before the trial court that the
amendment did not relate back to the original complaint
or that they would have been prejudiced by undue delay,
and, therefore, there were no other independent rea-
sons for the trial court to deny leave to amend.’
‘‘The plaintiff asserts that, since her amendment
existed, ‘albeit in an allegedly defective form,’ at the
commencement of the action, it is proper to rely on
the relation back doctrine. . . . She states that she
believes that the only reason Gonzales concerned itself
with the fact that the plaintiff there filed her amendment
within the statute of limitations period was because the
amendment contained an entirely new opinion letter
which did not exist when the action was com-
menced. . . .
‘‘The plaintiff contends that the Appellate Court in
Gonzales must have been contemplating situations such
as that presented here, otherwise it would have had no
reason to discuss the relation back doctrine. However,
in Gonzales, the court repeatedly referenced the
requirement that the amendment must be presented
within the statute of limitations. It stated that ‘[t]he
legislative purpose of § 52-190a (a) is not undermined
by allowing a plaintiff leave to amend his or her opinion
letter or to substitute in a new opinion letter if the
plaintiff did file, in good faith, an opinion letter with
the original complaint, and later seeks to cure a defect in
that letter within the statute of limitations. Amending
within this time frame typically will not prejudice the
defendant or unduly delay the action.’ . . . Id., 519.
The court explained [in Gonzales] that ‘[a]llowing
amendments filed after the thirty days to amend as of
right but before the statute of limitations period has
run favors judicial economy . . . .’ Id.
‘‘In particular, the court emphasized the requirement
of the filing of an amendment before the limitations
period has run, by distinguishing its prior decision in
Torres v. Carrese, 149 Conn. App. 596, 611 n.14, 90 A.3d
256, cert. denied, 312 Conn. 912, 93 A.3d 595 (2014),
where the Appellate Court ‘noted that the trial court
could not consider a new opinion letter attached to the
amended complaint because it was obtained after the
action commenced, after the defendants had filed their
motions to dismiss, and after the statute of limitations
had expired . . . . Therefore, Torres is distinguishable
from the present case and falls outside the time frame
for when amending an opinion letter is allowed.’ . . .
Gonzales v. Langdon, supra, 161 Conn. App. 520 n.10.
‘‘Thus, Gonzales emphasizes the requirement that the
amendment must be filed within the limitations period.
As in Torres, the plaintiff’s amendment here was filed
after the statute of limitations period had expired. In
view of the fact that attachment of a written opinion
letter that does not comply with § 52-190a constitutes
insufficient process, and service of that insufficient pro-
cess does not subject a defendant to the jurisdiction of
the court, which implicates personal jurisdiction; see
Morgan v. Hartford Hospital, [301 Conn. 388, 401–402,
21 A.3d 451 (2011)]; the court concludes that the refer-
ence in Gonzales to the relation back doctrine was
employed to illustrate that, in the circumstances there,
there were no ‘other independent reasons for the trial
court to deny leave to amend,’ Gonzales v. Langdon,
supra, 161 Conn. App. 522. The reference to the relation
back doctrine does not contradict the court’s earlier
statements concerning the requirement for filing the
request to amend within the limitations period, not after
it expired.’’ (Citations omitted; emphasis in original.)
The court thus concluded: ‘‘Since it was filed after the
expiration of the limitations period, the plaintiff’s pro-
posed amendment to the opinion letter may not be con-
sidered.’’
In her reply brief to this court, the plaintiff empha-
sized her reliance on this court’s ruling in Gonzales to
support her claim that she filed her request for leave
to amend within the applicable statute of limitations.
She explained that she ‘‘does not rely on the relation
back doctrine as precedent for her right to file an
amended opinion letter. Quite to the contrary, plaintiff
relies on this court’s decision in Gonzales, which states
in pertinent part: ‘Not only does § 52-190a not prohibit
amendments, but judicial economy and justice support
allowing amendments in cases, like this one, where a
legally insufficient opinion letter in a seemingly nonfriv-
olous medical malpractice claim can be easily cured by
amendment within a short time frame.’ [Gonzales v.
Langdon, supra, 161 Conn. App. 521].’’ When read in
context, however, that portion of Gonzales clearly per-
tained to cases allowing amendments filed before the
expiration of the statute of limitations. The court rea-
soned that, ‘‘[a]llowing amendments filed after the thirty
days to amend as of right but before the statute of
limitations period has run favors judicial economy . . .
[because dismissal] for lack of a legally sufficient opin-
ion letter . . . is without prejudice, and even if the
statute of limitations has run, relief may well be avail-
able under the accidental failure of suit statute . . . .
Thus, if a plaintiff is unable to amend the original opin-
ion letter during this time frame, the action would be
dismissed without prejudice and could be filed anew,
either within the statute of limitations or pursuant to
the accidental failure of suit statute.’’ (Citation omitted;
emphasis added; internal quotation marks omitted.)
Id., 519–20.
We agree with the trial court that the plaintiff’s reli-
ance on Gonzales is misplaced. The holding in Gonzales
permits amendments to legally insufficient opinion let-
ters only if they are sought prior to the expiration of
the statute of limitations. Otherwise, Gonzales suggests
that a plaintiff’s only vehicle for saving his improperly
pleaded action, after its mandatory dismissal as
required by statute, is to refile the action with a proper,
amended opinion letter under the accidental failure of
suit statute. To hold that an amendment can be permit-
ted after the expiration of the statute of limitations on
the theory that the amended pleading relates back to
the date of the filing of the improperly pleaded action
would render all references to the statute of limitations
and the accidental failure of suit statute in Gonzales
irrelevant, for under that analysis, every amendment,
however unseasonable, would relate back to the date
of the original complaint without need for invoking, or
thus complying with, the requirements of the accidental
failure of suit statute. The plaintiff has not provided
any appellate authority supporting such an expansion
of this court’s ruling in Gonzales, and thus we are disin-
clined to permit one, for such an approach to actions
supported by insufficient opinion letters would be fun-
damentally inconsistent with that taken by the legisla-
ture in mandating the dismissal of such actions for lack
of personal jurisdiction. Because actions dismissed for
want of personal jurisdiction after the expiration of the
statute of limitations can be saved if they are timely
refiled in proper form under the accidental failure of
suit statute, the legislature plainly contemplated that a
malpractice action dismissed for not being supported
by a qualifying opinion letter could be saved under
that same statute, after the expiration of the statute of
limitations, by refiling it along with a proper opinion
letter. That procedure would be circumvented by
allowing insufficient opinion letters to be amended after
the expiration of the statute of limitations. We thus
conclude that the trial court did not err in denying the
plaintiff’s request for leave to amend or in dismissing
her claim against the hospital for lack of personal juris-
diction.
II
The plaintiff also challenges the judgment of nonsuit
entered in favor of Macaron. Specifically, she claims
that the court erred in denying her motion to reargue the
court’s denial of her motion to set aside the judgment
of nonsuit. We disagree.
In denying the plaintiff’s motion to reargue the denial
of her motion to set aside the judgment of nonsuit, the
trial court set forth the following relevant procedural
history. ‘‘On September 21, 2015, Macaron filed a notice
stating that he had directed interrogatories and requests
for production to the plaintiff (discovery request). . . .
The plaintiff did not seek an extension of time to
respond or file objections thereto within the requisite
thirty day period. See Practice Book [(2015)] §§ 13-7 and
13-10. Thus, pursuant to the Practice Book, discovery
responses were due in October 2015.
‘‘When discovery responses were not received,
Macaron filed a motion for [a] nonsuit. . . . The plain-
tiff did not respond to this motion. In its order dated
November 9, 2015 . . . the court afforded the plaintiff
additional time to comply with the discovery request
and stated: Discovery compliance by December 4, 2015,
is directed. If compliance does not occur, the movant
may apprise the court by motion and a nonsuit may be
considered. Thus, the plaintiff was put on notice that
compliance was required and that failure to comply
could result in a nonsuit.
‘‘On December 7, 2015, Macaron filed a motion for
[an] order . . . in which he stated that the plaintiff had
failed to comply with the court’s order by again failing
to provide discovery responses. Macaron again moved
for a nonsuit. The plaintiff filed no response to this
second motion for [a] nonsuit and did not provide dis-
covery responses before the court considered the
motion.
‘‘By order dated December 21, 2015 . . . the court
noted that discovery compliance is necessary to afford
a defendant a fair opportunity to prepare a defense and,
in the exercise of its discretion, found that a nonsuit
was warranted. The court also stated, [i]f compliance
occurs by January 15, 2016, the court would consider
setting aside the nonsuit. . . .
‘‘On December 30, 2015, the plaintiff filed a notice of
compliance . . . in which she stated that she had com-
plied with the court’s December 21, 2015 order by fur-
nishing her discovery responses. On the same date, she
filed her motion to set aside . . . . Therein, she stated
that she had provided good faith compliance with the
order weeks before it was due and that the defendant
is simply not prejudiced by the timing of the disclo-
sure. . . .
‘‘On January 6, 2016, Macaron filed his objection to
the plaintiff’s motion to set aside and his motion for
costs. . . . Therein, Macaron asserted that the plaintiff
had failed to answer interrogatories 75 [through] 78,
pertaining to expert witnesses, by stating that she would
provide the requested information in a timely fashion
in accordance with any case specific scheduling order
or similar discovery order and the rules of practice.
. . . This response by the plaintiff ignored this court’s
two previous orders, discussed above, in which the
plaintiff was specifically directed to provide discovery
compliance. In addition, Macaron cited other alleged
deficiencies in the responses. . . .
‘‘The plaintiff and codefendant Saint Mary’s Hospital,
Inc., submitted a proposed scheduling order . . .
which was filed on January 7, 2016. This proposed
scheduling order was not signed by Macaron’s counsel
and has not been approved by the court.
‘‘On January 15, 2016, the plaintiff filed a notice of
supplemental compliance, objections to Macaron’s
interrogatories, and a reply to Macaron’s objection to
the motion to set aside. . . . In the objections to the
interrogatories concerning expert witnesses, the plain-
tiff states that she [o]bjects on the grounds that the
scheduling order trumps the interrogatory request and
provides until April 1, 2017, to do so. . . . As stated
above, the proposed scheduling order has not been
approved by the court. It is not a court order. . . .
‘‘The plaintiff does not challenge the court’s previous
Although she did not do so previously, and although,
as stated above, she previously filed no objections to
Macaron’s motions for [a] nonsuit, the plaintiff, in her
motion for reargument, contends for the first time that
the entry of a nonsuit was improper.’’ (Citations omit-
ted; internal quotation marks omitted.)
By way of a memorandum of decision dated June 8,
2016, the court denied the plaintiff’s motion to reargue
the court’s March 2, 2016 denial of her motion to set
aside the nonsuit. In so doing, the court explained, inter
alia: ‘‘Previous to the entry of the nonsuit on December
21, 2015, [the plaintiff] had a complete opportunity to
oppose it. Also, as stated above, in the court’s order
dated November 9, 2015 . . . she was specifically put
on notice that a nonsuit would be considered if she did
not comply with Macaron’s discovery request. As stated
above, she filed no objections to Macaron’s two motions
seeking the entry of a nonsuit, including Macaron’s
December 7, 2015 motion . . . .
‘‘The plaintiff’s failure to oppose the entry of a nonsuit
may not result in later reconsideration of the decision
to enter a nonsuit after she received an adverse decision
on her motion to set aside.
‘‘Prior to granting the unopposed motion for the entry
of a nonsuit, the court afforded the plaintiff additional
time to comply with the discovery requests, but the
plaintiff did not fully comply. The entry of a nonsuit
was a result of the plaintiff’s own failure to respond to
motions and to comply with court orders. This conse-
quence was a result of the plaintiff’s own conduct; no
injustice was involved. . . .’’
‘‘Thus, in the court’s order, the plaintiff was explicitly
put on notice of the governing statute and Practice
Book section by reference to Supreme Court authority.
‘‘The plaintiff also asserts that she was not apprised
by the court that the entry of the nonsuit required her
to immediately disclose her expert witnesses. . . . To
the contrary, the court’s orders . . . specifically
directed her to comply with Macaron’s discovery
requests, which included interrogatories concerning
experts.
‘‘The court’s order was clear. It stated that the court
would consider setting aside the nonsuit if discovery
compliance occurred by January 15, 2016. The plaintiff
did not seek clarification. In support of her motion to
set aside the nonsuit, she did not claim that the order
was unclear. Her belated argument that the court’s
order was unclear is a prohibited attempt at a ‘second
bite of the apple.’ ’’ (Citations omitted.)
The court further explained: ‘‘[The] plaintiff’s] recita-
tion of events . . . omits her failure to respond to the
defendant’s initial motion for [a] nonsuit . . . . It also
ignores the plaintiff’s failure to comply with the court’s
order dated November 9, 2015 . . . in which the court
afforded her additional time to comply, up to December
4, 2015. As stated above, in that order, the plaintiff was
put on notice that if compliance did not occur, a nonsuit
could result. The plaintiff has ignored [her] obligation
to present [her] reason for the delay with any degree
of particularity. . . .
‘‘The plaintiff characterizes her omissions as meeting
the definition of oversight, but not amounting to inatten-
tion. . . . [B]oth oversight and inattention are . . .
synonyms for neglect or negligence. The plaintiff’s fail-
ures to provide timely responses to the discovery
requests and her failures to comply with the court’s
orders do not amount to a showing that she was pre-
vented from prosecuting her action by mistake, acci-
dent, or other reasonable cause.’’ (Citations omitted.)
Finally, even though the plaintiff claimed for the first
time in her motion to reargue that the nonsuit was
disproportionate to her offenses, and thus that the court
was not required to address it, it did so, explaining, inter
alia: ‘‘First, the plaintiff mischaracterizes the history of
this matter by asserting that the record is completely
silent as to whether the court exercised its discretion
with due caution and restraint in ordering the nonsuit
and that the order was entered after she had complied
with a total of 217 requests by the deadline set by the
court. . . .
‘‘To the contrary, the court’s order, dated December
21, 2015 . . . specified that the plaintiff had filed no
objection to the entry of a nonsuit, and had not complied
with the court’s order of November 9, 2015, directing
discovery compliance by December 4, 2015 . . . . No
discovery compliance had occurred when the nonsuit
was granted. In addition, the court’s order specifically
referenced the exercise of discretion and cited Wyszo-
mierski v. Siracusa, 290 Conn. 225, 235, 963 A.2d 943(2009), where the court stated, [i]n order for a trial
court’s order of sanctions for violation of a discovery
order to withstand scrutiny, three requirements must
be met: First, the order to be complied with must be
reasonably clear. . . . Second, the record must estab-
lish that the order was in fact violated. . . . Third, the
sanction imposed must be proportional to the viola-
tion. . . .
‘‘Second, the plaintiff mischaracterizes the history of
this matter by asserting that when she failed to comply
with the court’s November 9, 2015 order, it [was] the
only order in the entire case that [the] [p]laintiff missed.
. . . To the contrary, as discussed in the court’s deci-
sion on the motion to set aside the nonsuit . . . the
court also found that she had not fully complied with
the court’s order of December 21, 2015. . . .
‘‘Under the circumstances here, the three require-
ments for sanctions for violation of a discovery order
to withstand scrutiny are met. First, as discussed above,
the court’s orders were clear. Also, as discussed above,
the record establishes that the plaintiff violated two
court orders . . . and that the violation continues,
since the plaintiff still has not provided responses to
the discovery requests concerning her experts. . . .
‘‘In its December 21, 2015 order, the court exercised
its discretion mindful of Connecticut’s policy which
favors bringing about a trial on the merits of a dispute
wherever possible and to secure for litigants their day
in court. . . .
‘‘Integral to that process is discovery compliance.
. . . When the court found that a nonsuit was war-
ranted, the plaintiff had failed to comply with the court’s
November 9, 2015 order directing her to comply and
the court noted that no discovery compliance had
occurred. As the record reflects, in its orders, the court
previously provided the plaintiff with extensions of time
for compliance. In ordering a nonsuit, the court noted
that it would consider setting aside the nonsuit if com-
pliance occurred.
‘‘Here . . . the plaintiff’s belated discovery
responses remained incomplete even after the court
afforded the plaintiff an additional opportunity to com-
ply by stating that it would consider setting aside the
nonsuit if compliance occurred. In her memorandum
[of law] . . . the plaintiff again argues that, based on
Practice Book § 13-4 (g), she was not required to comply
with Macaron’s interrogatories concerning her experts.
‘‘The court previously addressed this contention . . .
stating that her objections to the interrogatories were
untimely and that her reliance on Practice Book § 13-
4 (g) was misplaced, since the court had ordered com-
pliance. Having failed to object to the interrogatories
in a timely manner, she was required to respond to
them. The court’s orders directed her to comply. Under
the circumstances, Practice Book § 13-4 (g) is inap-
plicable.
‘‘Thus, the plaintiff’s argument that, in its December
21, 2015 order . . . the court effectively imposed a
deadline of January 15, 2016, for expert disclosure with
no notice is unfounded. As she acknowledges . . .
Macaron served his discovery request, including the
interrogatories concerning experts, on September 21,
2015. Responses were due thirty days later. . . . The
court’s orders subsequently directed the plaintiff to
comply.
‘‘The plaintiff belatedly provided compliance with
respect to many of Macaron’s requests. However, after
failing to timely object and waiving her right to object,
and in defiance of the court’s orders, she steadfastly
refuses to provide discovery responses concerning
experts. Review of the plaintiff’s motion for reargument
shows that her discovery responses still remain incom-
plete, notwithstanding this court’s orders. . . .
‘‘As discussed above, here, noncompliance was not
caused by inability. No mitigating factors are present.
. . . Further . . . the plaintiff’s failure to respond to
the discovery requests and the violations of the court’s
orders were not isolated events. . . . Rather, they evi-
dence a pattern of noncompliance. . . . In view of the
history of noncompliance, the court concludes that
such conduct would persist. . . .
‘‘The information that was sought is central to the
plaintiff’s claims. The plaintiff’s continued failure to
fully comply evidences a lack of due regard to necessary
rules of procedure. . . . Lack of full compliance preju-
dices the defendant’s ability to investigate the plaintiff’s
claims and to prepare a defense. . . .
‘‘The plaintiff had ample, and extended, time to fully
comply, but did not do so within the deadlines set by
the court, and still has not done so. . . .
‘‘In the exercise of its discretion, the court found that
a nonsuit was an appropriate sanction. A court should
not set aside a nonsuit where a party simply chose to
ignore the court’s authority. . . .
‘‘The plaintiff may not be permitted to continue not
complying with the court’s orders. In so doing, the prog-
ress of this matter has been inexcusably delayed. . . .
At this juncture, nonsuit remains warranted as the only
reasonable remedy available to vindicate the legitimate
interests of the defendant and the court.’’ (Citations
omitted; internal quotation marks omitted.) The court
thus denied the plaintiff’s motion to reargue. This
appeal followed.5
‘‘The standard of review for a court’s denial of a
motion to reargue is abuse of discretion. . . . Like-
wise, [t]he determination of whether to set aside [a]
default [or nonsuit] is within the discretion of the trial
court . . . and will not be disturbed unless that discre-
tion has been abused or where injustice will result. In
the exercise of its discretion, the trial court may con-
sider not only the presence of mistake, accident, inad-
vertence, misfortune or other reasonable cause . . .
factors such as [t]he seriousness of the default, its dura-
tion, the reasons for it and the degree of contumacy
involved . . . but also, the totality of the circum-
stances, including whether the delay has caused preju-
dice to the nondefaulting party.’’ (Citation omitted;
internal quotation marks omitted.) Spatta v. American
Classic Cars, LLC, 150 Conn. App. 20, 27, 90 A.3d 318,
cert. denied, 312 Conn. 919, 94 A.3d 640 (2014).
As aptly recounted by the trial court, the plaintiff was
afforded multiple opportunities to properly respond to
Macaron’s discovery requests, and its orders that she
comply with those requests. At every turn, the plaintiff
failed to do either. In light of the court’s thorough and
well reasoned memorandum of decision, as substan-
not abuse its discretion in denying the plaintiff’s motion
to reargue the denial of her motion to set aside the
judgment of nonsuit.6
The judgments are affirmed.
In this opinion the other judges concurred.
1
As to Macaron, the plaintiff initially appealed from the judgment of
nonsuit and the denial of her motion to set aside the judgment of nonsuit.
Macaron filed a motion to dismiss the appeal from the judgment of nonsuit
for untimeliness. This court granted the motion to dismiss the appeal from
the judgment of nonsuit. The plaintiff’s appeal from the denial of the motion
to reargue the motion to set aside the nonsuit is now before us.
2
General Statutes § 52-190a (b) provides: ‘‘Upon petition to the clerk of
the court where the civil action will be filed to recover damages resulting
from personal injury or wrongful death, an automatic ninety-day extension
of the statute of limitations shall be granted to allow the reasonable inquiry
required by subsection (a) of this section. This period shall be in addition
to other tolling periods.’’
3
Macaron also filed a motion to dismiss, but did not pursue it.
4
The trial court agreed to consider the plaintiff’s objection despite her
failure to timely file it within thirty days as required by Practice Book § 10-31.
5
The plaintiff filed this appeal on June 23, 2016. On July 1, 2016, the
plaintiff filed a motion to open the judgment of nonsuit, which the court
denied on July 26, 2016. The plaintiff has not challenged that ruling on appeal.
6
On page fourteen of her fourteen page brief to this court, in the portion
of her brief that is titled, ‘‘Conclusion and Statement of Relief Sought,’’ the
plaintiff states, inter alia: ‘‘[The] [p]laintiff does not believe a judgment of
nonsuit three months into the case for what amounts to a violation of one
court order with compliance occurring mere days after the original deadline
set and well before the second, with a trial date in January, 2018, meets the
threshold set by the court in Millbrook.’’ Not only does the plaintiff fail to
provide the full name and legal citation of the case on which she relies, but
she fails to state the ‘‘threshold’’ that she meets according to that case. This
is the first and only time that the plaintiff even suggests that the sanction
of a judgment of nonsuit might be disproportionate to her repeated viola-
tions. This lone sentence, which misstates the trial court’s findings—which
she has not challenged as clearly erroneous—is devoid of any legal analysis.
The plaintiff’s desultory, unexplicated reference to Millbrook cannot reason-
ably be construed as an adequately briefed legal argument.