Estela v. Bristol Hospital, Inc. , 179 Conn. App. 196 ( 2018 )

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JOSE ESTELA v. BRISTOL HOSPITAL, INC.
(AC 38813)
Lavine, Keller and Harper, Js.
Syllabus
The plaintiff physician brought an action against the defendant hospital,
claiming that the defendant improperly had restricted his hospital privi-
leges and engaged in anticompetitive behavior by stealing his patients.
The trial court rendered a judgment of nonsuit as a result of the plaintiff’s
failure to comply with certain discovery orders and thereafter denied
the plaintiff’s motion to open the judgment. The trial court determined
that the plaintiff had failed to satisfy the statutory (§ 52-212 [a]) require-
ment for opening a judgment of nonsuit because he did not demonstrate
that he was prevented from prosecuting the matter as a result of mistake,
accident or other reasonable cause. Thereafter, the plaintiff commenced
the present action pursuant to the accidental failure of suit statute (§ 52-
592 [a]), alleging that his noncompliance with the trial court’s discovery
orders in his first action was the result of mistake, inadvertence or
excusable neglect. The defendant filed a motion to bifurcate the proceed-
ings in order to adjudicate the plaintiff’s claim that his action was not
time barred due to the applicability of § 52-592 (a) separately from the
merits of his underlying causes of action. The trial court thereafter
rendered judgment for the defendant, concluding that the plaintiff’s
action could not be maintained under § 52-592 (a) because his original
action had been terminated for serious disciplinary reasons related to
his noncompliance with discovery orders, and not because of mistake,
inadvertence or excusable neglect. On appeal to this court, the plaintiff
claimed, inter alia, that the trial court improperly found that his alleged
noncompliance with discovery orders did not occur in circumstances
such as mistake, inadvertence or excusable neglect, and that the court
improperly applied the statutory (§ 52-212) standard for opening a judg-
ment of nonsuit in determining whether § 52-592 (a) applied. Held:
1. The trial court did not abuse its discretion in determining the applicability
of § 52-592 (a) apart from the issues being tried on the merits in the
interests of judicial efficiency, as the issue of that statute’s applicability
was dispositive because the plaintiff’s claims would have been time
barred under the applicable statutes of limitations if § 52-592 (a) did
not apply, and it having been proper for the court to address the applica-
bility of § 52-592 (a) through a motion to bifurcate, the defendant did
not waive its right to challenge that statute’s applicability by failing to
previously raise the statute of limitations as a special defense.
2. Contrary to the plaintiff’s claim, the trial court applied the correct standard
in determining the applicability of § 52-592 (a) to the present action;
although it was necessary for the trial court in the present case to
consider the trial court’s analysis in the plaintiff’s first action under
§ 52-212, the trial court in the present case applied the correct standard
in determining that the viability of the present action could not be based
on § 52-592 (a) because the first action had been terminated for serious
disciplinary reasons rather than because of mistake, accident or other
reasonable cause within the meaning of § 52-212.
3. The trial court’s findings as to the plaintiff’s conduct that led to the
judgment of nonsuit in the plaintiff’s first action were not clearly errone-
ous, as the record supported the court’s finding that the first action was
dismissed for serious disciplinary reasons and not because of mistake,
inadvertence or excusable neglect, and, contrary to the plaintiff’s claims,
the court considered his justifications for his noncompliance with dis-
covery orders and did not overlook that disciplinary dismissals are not
excluded categorically from the relief afforded by § 52-592 (a).
4. The plaintiff could not prevail on his unpreserved claim that § 52-592 (a)
applies to any judgment of nonsuit, as this court was not bound to
consider claims of law that were not properly raised at trial, and, even
if the plaintiff’s claim had been properly preserved, it contradicted
precedent.
Argued September 18, 2017—officially released January 9, 2018
Procedural History
Action to recover damages for, inter alia, alleged tor-
tious interference with business expectancies, and for
other relief, brought to the Superior Court in the judicial
district of New Britain, where the court, Young, J.,
following a hearing, issued a certain order as to the
defendant’s motion to bifurcate; thereafter, the court
granted the plaintiff’s motion for judgment and ren-
dered judgment for the defendant, from which the plain-
tiff appealed to this court. Affirmed.
Joseph B. Burns, with whom, on the brief, was
Pamela A. LeBlanc, for the appellant (plaintiff).
Holly L. Cini, with whom were Sara R. Simeonidis
and, on the brief, Jillian R. Orticelli, for the appellee
(defendant).
Opinion
HARPER, J. This appeal is the latest installment in
a long and protracted litigation between the parties.
The plaintiff, Jose Estela, a physician, appeals from
the trial court’s judgment that his case could not be
maintained under the accidental failure of suit statute,
General Statutes § 52-592 (a),1 because his first action
against the defendant, Bristol Hospital, Inc., was dis-
missed for ‘‘serious disciplinary reasons’’ and not as a
matter of form. On appeal, the plaintiff claims that (1)
the defendant waived the right to challenge the applica-
bility of § 52-592 (a); (2) the court incorporated a differ-
ent and higher standard into its decision and thus
deprived him of his rights under Ruddock v. Burrowes,
243 Conn. 569, 706 A.2d 967 (1998), by limiting the § 52-
592 (a) hearing to the standard set forth in General
Statutes § 52-212; (3) his alleged discovery noncompli-
ance occurred in circumstances such as mistake, inad-
vertence, or excusable neglect; and (4) § 52-592 (a)
applies to any judgment of nonsuit.2 We disagree and,
accordingly, affirm the judgment of the trial court.
The relevant procedural history is as follows. Prior
to commencing the present action, the plaintiff com-
menced his first action, Estela v. Bristol Hospital, Inc.,
Superior Court, judicial district of New Britain, Docket
No. CV-11-6013260-S (Estela I), on November 3, 2011,
alleging that the defendant improperly had restricted
his hospital privileges and engaged in anticompetitive
behavior by stealing his patients. The complaint set
forth causes of action for tortious interference with
business expectancies, breach of contract, breach of
the covenant of good faith and fair dealing, tortious
interference with contractual relations, and defamation.
As the court in the present action, Young, J., noted,
Estela I ‘‘was heavily litigated, with well over 100 filings
before it was ultimately terminated by the court, Swien-
ton, J., [on October 28, 2013] for the plaintiff’s failure
to comply with the court’s deadlines [set forth in two
court orders].’’
On November 1, 2013, the plaintiff filed a motion for
reargument or reconsideration of the entry of nonsuit,
which the court in Estela I denied on November 18,
2013. The plaintiff then filed a motion to open the non-
suit on November 27, 2013, which the court denied on
December 16, 2013. On January 7, 2014, the plaintiff
filed a motion for reconsideration or reargument of the
denial of the motion to open, which the court denied
on January 21, 2014.
On February 10, 2014, the plaintiff appealed from the
judgment denying his motion for reconsideration of the
denial of the motion to open. This court dismissed the
appeal as moot because the plaintiff did 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’’; Estela v.
Bristol Hospital, Inc., 165 Conn. App. 100, 107, 138 A.3d
1042, cert. denied, 323 Conn. 904, 150 A.3d 681 (2016);
which prevented this court from affording him practical
relief, even if the plaintiff’s claims were resolved in his
favor. Id., 108.
Prior to the resolution of the plaintiff’s appeal from
the judgment rendered in Estela I, on October 24, 2014,
the plaintiff commenced the present action, which was
essentially identical to Estela I, relying on § 52-592 (a),
in avoidance of any claim that his causes of action
would be time barred by the applicable statutes of limi-
tations.3 On December 16, 2014, the defendant filed a
motion for summary judgment. In its memorandum of
law in support of the motion for summary judgment, the
defendant argued, in relevant part, that the applicable
statutes of limitations barred the plaintiff’s claims and
assumed that the plaintiff was relying on the savings
provisions of § 52-592 (a), though the defendant did not
explicitly challenge the applicability of the statute.
On February 26, 2015, prior to the plaintiff’s filing an
objection to the motion for summary judgment or action
by the court, the defendant filed a motion for an order
to bifurcate the trial, pursuant to General Statutes § 52-
2054 and Practice Book § 15-1,5 to try the plaintiff’s claim
that his action was not time barred due to § 52-592 (a)
separately from the merits of the underlying tort and
breach of contract claims. On March 12, 2015, the plain-
tiff filed an objection to the defendant’s motion for
an order to bifurcate on the grounds that on multiple
occasions the defendant had waived its right to chal-
lenge the applicability of § 52-592 (a) and was estopped
from doing so by way of a motion to bifurcate. No
immediate action was taken on the defendant’s motion
to bifurcate or the plaintiff’s objection.
On June 23, 2015, the court overruled the plaintiff’s
objection to the defendant’s motion for an order to
bifurcate and scheduled an evidentiary hearing on the
issue of whether § 52-592 (a) applies to the plaintiff’s
case. The evidentiary hearing took place on August 3,
2015. At the court’s request, the parties filed posthearing
briefs on August 10, 2015. On August 17, 2015, the court
determined that, under the applicable analysis set forth
in Ruddock v. Burrowes, supra, 243 Conn. 569, § 52-592
(a) did not apply to the plaintiff’s case because ‘‘Estela
I was not dismissed as a matter of form . . . .’’ The
court found that ‘‘[because Estela I] was terminated for
serious disciplinary reasons and not because of mis-
take, inadvertence or excusable neglect . . . the viabil-
ity of this action cannot be based upon . . . [§ 52-592
(a)].’’ This appeal followed.6 Additional facts and proce-
dural history will be set forth as necessary.
I
We first address the plaintiff’s claim that the defen-
dant waived its right to challenge the applicability of
§ 52-592 (a) by failing to raise the statute of limitations
as a special defense, in a motion to dismiss, or in its
motion for summary judgment. The plaintiff further
claims that a motion to bifurcate was the improper
vehicle to challenge the applicability of § 52-592 (a).
We disagree.
Absent § 52-592 (a), the causes of action set forth in
the plaintiff’s complaint in the present case were time
barred by the applicable statutes of limitations in Gen-
eral Statutes §§ 52-5777 and 52-597, which the defendant
asserted, contrary to the plaintiff’s claim, in its Decem-
ber 16, 2014 memorandum of law in support of its
motion for summary judgment.8 ‘‘Section 52-592 (a)
allows a plaintiff to commence a new action for the
same cause, within one year, if the original action failed
to be tried on its merits . . . for any matter of form
. . . . Deemed a saving statute, § 52-592 enables plain-
tiffs to bring anew causes of action despite the expira-
tion of the applicable statute of limitations.’’ (Internal
quotation marks omitted.) Vestuti v. Miller, 124 Conn.
App. 138, 143, 3 A.3d 1046 (2010).
‘‘Pursuant to . . . § 52-205 and Practice Book § 15-
1, the trial court may order that one or more issues
that are joined be tried before the others. The interests
served by bifurcated trials are convenience, negation
of prejudice and judicial efficiency. . . . Bifurcation
may be appropriate in cases in which litigation of one
issue may obviate the need to litigate another issue.
. . . The bifurcation of trial proceedings lies solely
within the discretion of the trial court.’’ (Footnotes
omitted; internal quotation marks omitted.) Dumas v.
Mena, 82 Conn. App. 61, 64, 842 A.2d 618 (2004).
Because ‘‘[b]ifurcation of trial proceedings lies solely
within the discretion of the trial court . . . appellate
review is limited to a determination of whether that
discretion has been abused.’’ (Citations omitted; inter-
nal quotation marks omitted.) O’Shea v. Mignone, 50
Conn. App. 577, 582, 719 A.2d 1176, cert. denied, 247
Conn. 941, 723 A.2d 319 (1998). ‘‘In determining whether
the trial court has abused its discretion, we must make
every reasonable presumption in favor of the correct-
ness of its action.’’ (Internal quotation marks omitted.)
Id., 583. ‘‘[T]he ultimate issue is whether the court could
reasonably conclude as it did . . . .’’ (Internal quota-
tion marks omitted.) Saczynski v. Saczynski, 109 Conn.
App. 426, 428, 951 A.2d 670 (2008).
Our precedent demonstrates that the question of
whether § 52-592 (a) applies may be addressed through
a motion for an order to bifurcate. In Plante v. Charlotte
Hungerford Hospital, 300 Conn. 33, 40–41, 12 A.3d 885(2011),9 the applicability of § 52-592 (a) initially was
challenged in a motion to dismiss and a motion for
summary judgment, both of which were denied by the
trial court. Thereafter, ‘‘[f]ollowing discovery and
numerous revisions to the operative complaint, the trial
court . . . granted the hospital defendants’ motion
pursuant to General Statutes § 52-206 and Practice
Book § 15-1 to bifurcate the proceedings, and to try
the claim that the action was saved by § 52-592 (a)
separately from the malpractice claims.’’ Id., 41. On
appeal, the Supreme Court upheld the court’s determi-
nation that § 52-592 (a) did not save the plaintiff’s
action. Id., 39.
Similarly here, the defendant’s first response to the
plaintiff’s complaint was to file a motion for summary
judgment, in which it argued that the applicable statutes
of limitations barred the plaintiff’s claims.10 The court
never rendered a decision on the defendant’s motion
for summary judgment because the defendant filed a
motion for an order to bifurcate the trial to determine
whether § 52-592 (a) saved the plaintiff’s case. The court
determined that the question of whether § 52-592 (a)
applied was a dispositive issue. Thus, in the present
case, as in Plante, the court ultimately addressed the
issue of the applicability of § 52-592 (a) through a
motion to bifurcate.
The plaintiff also argues that the court was wrong to
‘‘recast’’ the defendant’s motion for an order to bifurcate
as a dispositive motion. We disagree.
It was within the court’s discretion to bifurcate the
proceedings and address the issue of the applicability
of § 52-592 (a) apart from the issues being tried on the
merits in the interests of judicial efficiency. See Dumas
v. Mena, supra, 82 Conn. App. 64; see also Reichhold
Chemicals, Inc. v. Hartford Accident & Indemnity Co.,
243 Conn. 401, 423–24, 703 A.2d 1132 (1997). In its
memorandum of decision, the court noted that ‘‘[t]o
allow this action to proceed through the same extensive
litigation [as Estela I] only to have the court determine
thereafter that it cannot be saved by [§ 52-592 (a)] would
be a waste of the time and resources of the parties and
the court. . . . The issue before the court at this time
is whether the action may be saved by [§ 52-592 (a)].’’
Given that the plaintiff’s claim would be time barred if
§ 52-592 (a) did not apply; see Vestuti v. Miller, supra,124 Conn. App. 143 (‘‘§ 52-592 enables plaintiffs to bring
anew causes of action despite the expiration of the
applicable statute of limitations . . . [but] to fall within
the purview of § 52-592 . . . the original lawsuit must
have failed for one of the reasons enumerated in the
statute’’ [internal quotation marks omitted]); the court
did not abuse its discretion in determining the applica-
bility of § 52-592 (a) apart from the issues being tried
on the merits.
II
We next address the plaintiff’s claim that the court
incorporated a different and higher standard into its
decision than the standard set forth in Ruddock v. Bur-
rowes, supra, 243 Conn. 569. Specifically, the plaintiff
asserts that he was deprived of his rights under Ruddock
because ‘‘[r]ather than employing the ‘mistake, inadver-
tence or excusable neglect’ standard under § 52-592 (a)
. . . and requiring a determination as to whether the
nonsuited party engaged in ‘egregious conduct,’ the
court limited the issue to one of ‘mistake, [accident] or
reasonable cause’ under a standard utilized under . . .
§ 52-212.’’ We disagree.
This court has opined that ‘‘§§ 52-592 and 52-212 have
different purposes and, thus, employ different legal
standards.’’ Skinner v. Doelger, 99 Conn. App. 540, 559,
915 A.2d 314, cert. denied, 282 Conn. 902, 919 A.2d 1037(2007). To open a nonsuit pursuant to § 52-212 (a),11 a
plaintiff must demonstrate that it was prevented from
prosecuting its action by ‘‘mistake, accident or other
reasonable cause . . . .’’ General Statutes § 52-212 (a).
In contrast, the ‘‘matter of form’’ provision of § 52-592
(a), as set forth in Ruddock, requires a plaintiff to dem-
onstrate that the prior suit failed ‘‘in circumstances
such as mistake, inadvertence or excusable neglect.’’
Ruddock v. Burrowes, supra, 243 Conn. 577. ‘‘[T]he
question of whether the court properly applied § 52-
592 presents an issue of law over which our review is
plenary.’’ Tellar v. Abbott Laboratories, Inc., 114 Conn.
App. 244, 249, 969 A.2d 210 (2009). ‘‘Under the plenary
standard of review, we must decide whether the court’s
conclusions are legally and logically correct and sup-
ported by the facts in the record.’’ Commissioner of
Public Health v. Colandrea, 175 Conn. App. 254, 259–60,
167 A.3d 471, cert. denied, 327 Conn. 957, A.3d
(2017).
The plaintiff argues that the court improperly limited
the August 3, 2015 evidentiary hearing on the applicabil-
ity of § 52-592 to the ‘‘different and higher legal stan-
dard’’ set forth in § 52-212. In response, the defendant
asserts that the court employed the correct standard
and that the plaintiff ‘‘improperly conflates [the court’s]
discussion of the nonsuit in Estela I . . . .’’ (Citations
omitted.) The defendant further argues that the court’s
memorandum of decision belies any argument that the
court applied the wrong standard. We agree with the
defendant.
To the extent that the plaintiff’s argument rests on
the standard quoted by the court during the August 3,
2015 evidentiary hearing, we note that our review of
the hearing transcript reveals that the plaintiff did not
object to the court’s recitation of the § 52-212 standard,
but instead, the plaintiff actually agreed12 with the court
that it was reciting the correct standard.13 Additionally,
although the court quoted the standard for § 52-212 at
the evidentiary hearing, we cannot conclude that it did
so in error. As the defendant asserts, in determining
whether § 52-592 (a) applied, it was necessary for the
court in the present case to consider the court’s reasons
in Estela I for entering the nonsuit, including its analysis
under § 52-212. During the August 3, 2015 evidentiary
hearing, the court told counsel: ‘‘I need to know what
the deficiencies were that form the basis of [the] ruling
[by the court in Estela I] on the motion for nonsuit.’’
As this court noted in Skinner v. Doelger, supra, 99
Conn. App. 540, ‘‘§§ 52-592 and 52-212 have different
purposes and, thus, employ different legal standards.
There is a difference, however, between relying on the
legal conclusions reached in an action and applying the
legal standard that was employed in that action. . . .
Indeed, we wonder how a court could determine why
an earlier lawsuit failed without relying on the factual
findings and legal conclusions drawn in that other
action.’’ (Emphasis added.) Id., 559.
More importantly, in its memorandum of decision,
the court applied the correct standard under Ruddock,
and not the standard under § 52-212—demonstrating
that it rendered a decision applying the correct stan-
dard. See Disciplinary Counsel v. Parnoff, 158 Conn.
App. 454, 467, 119 A.3d 621 (2015) (rejecting plaintiff’s
claim that court applied incorrect standard because,
inter alia, ‘‘the language used by the court in its memo-
randum of decision indicates that the court was aware
of and correctly applied the [proper] standard’’), aff’d,
324 Conn. 505, 152 A.3d 1222 (2016). In its memorandum
of decision, the court set forth its factual basis before
concluding: ‘‘For the reasons articulated above . . .
[Estela I] was terminated for serious disciplinary rea-
sons and not because of mistake, inadvertence or
excusable neglect. Therefore, the viability of this action
cannot be based upon . . . § 52-592.’’ (Emphasis
added.) Accordingly, we reject the plaintiff’s claim that
the court incorporated a ‘‘different and higher’’ standard
than that under Ruddock in rendering its decision on
the applicability of § 52-592 (a) to his case.14
III
We next address the plaintiff’s claim that the court
erred in finding that his alleged discovery noncompli-
ance did not occur in circumstances such as mistake,
inadvertence, or excusable neglect. The plaintiff argues
that the court overlooked that disciplinary dismissals
are not categorically excluded from the relief afforded
by § 52-592 (a), and that the court did not consider his
justifications for the alleged discovery noncompliance.
The plaintiff further argues that the court’s findings as
to his conduct that led to the judgment of nonsuit are
in clear error. We disagree.
The following additional facts and procedural history
are relevant to this claim. As summarized in the court’s
memorandum of decision: ‘‘On August 3, 2015, the court
conducted an evidentiary hearing solely on the applica-
bility of § 52-592 [and] the circumstances which led to
the court’s granting of the motion for judgment of non-
suit and denial of the motion to open nonsuit in Estela
I. Based upon the nature and conduct of the plaintiff
that led to the granting of the motion for judgment of
nonsuit, the court determines that Estela I was not
dismissed as a matter of form, but rather for serious
disciplinary reasons. Therefore, the present action . . .
cannot be maintained under § 52-592. The court sets
forth its factual basis below.
‘‘In Estela I, the defendant served a disclosure request
upon the plaintiff on May 30, 2012. On September 12,
2012, the plaintiff provided some responses and
asserted untimely objections. On September 18, 2012,
the defendant filed a motion to compel complete
responses. The plaintiff filed an objection to the motion
to compel, essentially asserting that he was a ‘busy
practicing physician’; that the defendant provided no
guidance as to how to comply; that some of the informa-
tion requested was privileged or unavailable; and that
he had provided substantial compliance. . . .
‘‘On January 28, 2013, after [a] hearing, [the court]
ordered the plaintiff to provide revised disclosure
responses [by February 8, 2013]. The court further
ordered the parties to return on February 25, 2013 ‘in
order to advise the court whether the defendant is seek-
ing further discovery.’ On that date, again after [a] hear-
ing, the court gave the plaintiff until March 29, 2013,
to provide additional compliance with the discovery
request. The primary compliance was to consist of tax
returns and the report of the plaintiff’s expert witness.
As the plaintiff failed to comply with the court’s order,
the court entered a judgment of dismissal on October
28, 2013.
‘‘At the evidentiary hearing in [the present case], the
sole witness was the plaintiff’s counsel, Mary Alice
Moore Leonhardt, [who] testified at length about discus-
sions between the plaintiff’s counsel and [the defen-
dant’s] counsel in Estela I concerning outstanding
discovery issues. Much of these discussions centered
on information which the plaintiff requested from the
defendant in order to finalize a report of the plaintiff’s
expert. Attorney Leonhardt essentially claimed that the
defendant’s attorney led her down the primrose path
by promising information which was never actually pro-
duced. Attorney Leonhardt assert[ed] that her reliance
on the representations of [the defendant’s] counsel
caused her to be dilatory in complying with the court’s
order. . . .
‘‘As to the tax returns, Attorney Leonhardt testified
that the plaintiff did not possess copies of the returns
and was at the mercy of the Internal Revenue Service
in order to comply with the court’s order. She did not
explain why the plaintiff failed to comply with the
court’s order to timely provide tax returns. At the very
least, [the] plaintiff could have provided [the defen-
dant’s] counsel an authorization to obtain the returns
directly from the Internal Revenue Service.
‘‘Attorney Leonhardt’s assertions do not address the
fact that the [court in Estela I] had serially ordered the
plaintiff’s compliance by February 29, 2013, and March
29, 2013. As of September 27, 2013, the plaintiff still
had not complied, nor had he complied a month later
when [the court in Estela I] granted the motion for
nonsuit and entered judgment.’’ (Footnote omitted.)
On the basis of these facts, the court in the present
case determined that ‘‘[t]he testimony of Attorney
Leonhardt and the evidence presented fail[ed] to estab-
lish that the judgment was entered as a matter of form.
Rather, it is clear that the judgment entered in Estela
I was a disciplinary judgment. . . . The court in Estela
I conducted several hearings and issued several orders
commanding the plaintiff’s compliance with discovery.
Despite this, the plaintiff repeatedly ignored the court’s
orders, thereafter never filed anything to inform the
court [that he] could not comply and never filed any
motion for extension of time. After almost six months
of noncompliance, the court entered a disciplinary dis-
missal of the action.15 This court cannot find that the
plaintiff’s counsel’s failure to comply with the orders
of Judge Swienton in Estela I was excused, excusable
or accidental. . . . Estela I was terminated for serious
disciplinary reasons and not because of mistake, inad-
vertence or excusable neglect. Therefore, the viability
of this action cannot be based upon . . . § 52-592.’’
(Footnote added.)
‘‘Disciplinary dismissals do not, in all cases, demon-
strate the occurrence of misconduct so egregious as to
bar recourse to § 52-592. . . . Whether the statute
applies cannot be decided in a factual vacuum. To
enable a plaintiff to meet the burden of establishing the
right to avail himself or herself of the statute, a plaintiff
must be afforded an opportunity to make a factual
showing that the prior dismissal was ‘a matter of form’
in the sense that the plaintiff’s noncompliance with a
court order occurred in circumstances such as mistake,
inadvertence or excusable neglect.’’ (Citation omitted;
footnote omitted.) Ruddock v. Burrowes, supra, 243
Conn. 576–77. Thus, ‘‘it is appropriate to consider each
case along a continuum; at one extreme are dismissals
for mistake or inadvertence, at the other extreme are
dismissals for serious misconduct or a series of cumula-
tive transgressions.’’ (Internal quotation marks omit-
ted.) Tellar v. Abbott Laboratories, Inc., supra, 114
Conn. App. 251.
‘‘On the one hand, in a long line of cases, we have held
that § 52-592 (a) is remedial in nature and, therefore,
warrants a broad construction. . . . On the other hand,
our decisions also have underscored the importance of
trial court caseflow management of crowded dockets.
Caseflow management is based upon the premise that
it is the responsibility of the court to establish standards
for the processing of cases and also, when necessary,
to enforce compliance with such standards. Our judicial
system cannot be controlled by the litigants and cases
cannot be allowed to drift aimlessly through the system.
. . . In the event of noncompliance with a court order,
the directives of caseflow management authorize trial
courts, in appropriate circumstances, to take action
against either the errant attorney or the litigant who
freely chose the attorney.’’ (Citations omitted; internal
quotation marks omitted.) Ruddock v. Burrowes, supra,
243 Conn. 575.
‘‘A determination of the applicability of § 52-592
depends on the particular nature of the conduct
involved.’’ Stevenson v. Peerless Industries, Inc., 72
Conn. App. 601, 607, 806 A.2d 567 (2002). This requires
the court to make factual findings, and ‘‘[a] finding of
fact will not be disturbed unless it is clearly erroneous.
. . .’’ Id., 606. ‘‘[T]he question of whether the court
properly applied § 52-592 presents an issue of law over
which our review is plenary.’’ Tellar v. Abbott Labora-
tories, Inc., supra, 114 Conn. App. 249.
As an initial matter, we reject the plaintiff’s argument
that ‘‘[t]he court was . . . wrong to not consider the
plaintiff’s justifications for his alleged discovery non-
compliance . . . .’’ Both the court’s memorandum of
decision, which is quoted previously, and our review
of the hearing transcript reveal that the court consid-
ered at length the plaintiff’s justifications for his non-
compliance. We also reject the plaintiff’s argument that
‘‘[t]he court overlooked in its decision that disciplinary
dismissals are not excluded categorically from the relief
afforded by § 52-592 (a).’’ (Internal quotation marks
omitted.) The court analyzed the case under the ‘‘matter
of form’’ analysis set forth in Ruddock precisely because
it recognized that disciplinary dismissals are not cate-
gorically excluded from relief under § 52-592 (a).
Applying that standard, which is applicable to disciplin-
ary dismissals, the court found that ‘‘[b]ased upon the
nature and conduct of the plaintiff that led to the grant-
ing of the motion for judgment of nonsuit . . . Estela
I was not dismissed as a matter of form, but rather for
serious disciplinary reasons.’’
The plaintiff argues that the court’s factual findings
in the present case are in ‘‘clear error.’’ In response,
the defendant argues that ‘‘[e]ach of these challenged
factual findings is amply supported in the record and,
thus, there is no basis to conclude that the . . . factual
findings were clearly erroneous.’’ We agree with the
defendant.
The record readily supports the court’s factual find-
ings underlying its determination that the dismissal of
Estela I did not occur in circumstances such as ‘‘mis-
take, inadvertence or excusable neglect.’’ In Estela I,
the plaintiff engaged in a pattern of delayed conduct
by responding late to discovery requests, filing untimely
objections, and filing notices of compliance after the
filing of the defendant’s motion for a judgment of non-
suit. The plaintiff failed to comply with two court
orders, which ordered him to comply with outstanding
discovery requests for his 2002–2004 tax returns and
his expert report, by February 29, 2013, and March 29,
2013, respectively.
As justification for his noncompliance, the plaintiff
represented to the court that he could not comply with
the defendant’s request to provide the expert report
absent information from the defendant that had not
yet been provided. As the court noted, however, the
plaintiff failed to explain why he did not file a motion
for extension of time in Estela I while waiting for this
purportedly essential information from the defendant.
The plaintiff also asserted that he could not comply
with the discovery request for his 2002–2004 tax returns
because he did not have copies, and he was waiting on
copies to be provided by the Internal Revenue Service.
The request for the tax returns, however, was not sent to
the Internal Revenue Service until November 5, 2013—
several days after the court in Estela I rendered the
judgment of nonsuit on October 28, 2013, and months
after the court-ordered deadlines to comply. Further,
as the court noted, the plaintiff could have provided the
defendant with an authorization to contact the Internal
Revenue Service itself, but failed to do so. Moreover,
the plaintiff even admitted in his motion to open the
judgment of nonsuit in Estela I that he ‘‘purposefully
held off on continuing his review and analysis of his own
documents to cull out relevant information because he
expected that the request[ed] patient information would
be produced by the defendant’’16 (emphasis added; inter-
nal quotation marks omitted);—further undercutting
any argument that the nonsuit resulted from ‘‘mistake,
inadvertence or excusable neglect.’’
Also as justification for his conduct in Estela I, the
plaintiff argued that he complied with the ‘‘reasonable
meaning’’ of the court’s orders. Specifically, the plaintiff
represented to the court in the present case that the
parties had come to an agreement amongst themselves
to extend the deadline for compliance.17 ‘‘In Connecti-
cut, [however] the general rule is that a court order must
be followed until it has been modified or successfully
challenged. . . . Our Supreme Court repeatedly has
advised parties against engaging in self-help and has
stressed that an order of the court must be obeyed
until it has been modified or successfully challenged.’’
(Internal quotation marks omitted.) Worth v. Commis-
sioner of Transportation, 135 Conn. App. 506, 520–21,
523, 43 A.3d 199 (rejecting plaintiff’s claim that failure
to comply with court order was ‘‘excusable neglect’’
and affirming trial court’s finding that plaintiff’s case
was not saved by § 52-592), cert. denied, 305 Conn. 919,
47 A.3d 389 (2012). Thus, even if the parties had come
to an agreement between themselves to extend the dis-
covery deadline, the plaintiff needed to first inform
the court of the agreement and have the court orders
modified. The plaintiff failed to do so.
On the basis of the foregoing, we cannot say that the
factual findings of the court in the present case, which
led it to conclude that the nonsuit in Estela I did not
occur in circumstances such as ‘‘mistake, inadvertence
or excusable neglect,’’ were clearly erroneous. See Rud-
dock v. Burrowes, supra, 243 Conn. 572. Our decision is
consistent with cases applying § 52-592 (a). The present
case is distinguishable from those cases where the court
determined that the prior case was dismissed as a mat-
ter of form, i.e., in circumstances such as ‘‘mistake,
inadvertence or excusable neglect.’’ See, e.g., Tellar v.
Abbott Laboratories, Inc., supra, 114 Conn. App. 252(holding § 52-592 saved plaintiff’s case where ‘‘[t]he
conduct . . . was neither repeated nor protracted . . .
[but] consisted of a singular failure to comply with a
discovery request over the course of four months’’);
Stevenson v. Peerless Industries, Inc., supra, 72 Conn.
App. 607–608 (stating ‘‘court improperly determined
that the plaintiff could not avail himself of § 52-592 [a]’’
where failure to respond timely to request to revise
and discovery demands was due to miscommunication
between plaintiff and his counsel). Rather, the plaintiff’s
behavior is more akin to those cases where the court
found that § 52-592 (a) did not apply because the plain-
tiff’s conduct was repeated or purposeful, and was not
the result of ‘‘mistake, inadvertence or excusable
neglect.’’ See, e.g., Plante v. Charlotte Hungerford Hos-
pital, supra, 300 Conn. 57 (concluding § 52-592 [a] did
not apply, and describing plaintiff’s failure to provide
an opinion letter pursuant to General Statutes § 52-190a
[a] as ‘‘blatant and egregious’’ where ‘‘[e]ven a cursory
reading of § 52-190a would have revealed . . . [that the
nurse writing the letter] did not qualify as a similar
health care provider’’ [internal quotation marks omit-
ted]); Gillum v. Yale University, 62 Conn. App. 775,
783, 773 A.2d 986 (concluding § 52-592 [a] did not apply,
and describing conduct in the first case as ‘‘lackadaisi-
cal behavior by the plaintiffs at every turn’’ [internal
quotation marks omitted]), cert. denied, 256 Conn. 929,
776 A.2d 1146 (2001).
In summary, although we recognize ‘‘that § 52-592 (a)
is remedial in nature and, therefore, warrants a broad
construction,’’ our Supreme Court also has held that
‘‘[o]ur judicial system cannot be controlled by the liti-
gants and cases cannot be allowed to drift aimlessly
through the system.’’ (Internal quotation marks omit-
ted.) Ruddock v. Burrowes, supra, 243 Conn. 575. This
court has recognized that there is ‘‘a critical distinction
between categories of cases involving, for instance,
[n]onappearances that interfere with proper judicial
management of cases, and cause serious inconvenience
to the court and to opposing parties . . . and those
involving things such as a mere failure to respond to a
notice of dormancy . . . .’’ (Citation omitted; internal
quotation marks omitted.) Skinner v. Doelger, supra,
99 Conn. App. 557–58. Along the continuum, where ‘‘at
one extreme are dismissals for mistake or inadvertence,
[and] at the other extreme are dismissals for serious
misconduct or a series of cumulative transgressions’’;
(internal quotation marks omitted) Tellar v. Abbott Lab-
oratories, Inc., supra, 114 Conn. App. 251; the record
supports the court’s finding that Estela I was dismissed
for ‘‘serious disciplinary reasons,’’18 and not because of
‘‘mistake, inadvertence or excusable neglect.’’ There-
fore, the findings of the court in the present case as to
the plaintiff’s conduct that led to the judgment of non-
suit in Estela I are not clearly erroneous.
IV
Finally, the plaintiff asserts for the first time on appeal
that § 52-592 (a) applies to any judgment of nonsuit.
Specifically, as an alternative to the claim addressed
in part II of this opinion, the plaintiff argues that the
standard set forth in Ruddock does not apply to judg-
ments of nonsuit, under the plain language of the stat-
ute. Before the court in the present case, however, the
plaintiff argued that the standard set forth in Ruddock
applied, and no party objected to its application. Fur-
ther, the plaintiff argues at length in his principal brief
on appeal that the court employed the wrong standard
in determining whether § 52-592 applied to his case by
not using the Ruddock analysis.
It is well established that ‘‘[w]e are not bound to
consider claims of law not properly raised at trial.’’
State v. Hilton, 45 Conn. App. 207, 222, 694 A.2d 830,
cert. denied, 243 Conn. 925, 701 A.2d 659 (1997), cert.
denied, 522 U.S. 1134, 118 S. Ct. 1091, 140 L. Ed. 2d
147 (1998). Further, even if we were to find that the
plaintiff’s claim was properly preserved, it contradicts
precedent. See Lacasse v. Burns, 214 Conn. 464, 473,
572 A.2d 357 (1990) (‘‘[section] 52-592 does not autho-
rize the reinitiation of all actions not tried on . . .
[their] merits’’ [internal quotation marks omitted]); see
also Vestuti v. Miller, supra, 124 Conn. App. 145(applying standard set forth in Ruddock to judgment of
nonsuit); Stevenson v. Peerless Industries, Inc., supra,72 Conn. App. 603–607 (same).
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 52-592 (a) provides in relevant part: ‘‘If any action,
commenced within the time limited by law, has failed one or more times
to be tried on its merits because of insufficient service or return of the writ
due to unavoidable accident or the default or neglect of the officer to whom
it was committed, or because the action has been dismissed for want of
jurisdiction, or the action has been otherwise avoided or defeated by the
death of a party or for any matter of form; or if, in any such action after a
verdict for the plaintiff, the judgment has been set aside, or if a judgment
of nonsuit has been rendered or a judgment for the plaintiff reversed, the
plaintiff . . . may commence a new action . . . for the same cause at any
time within one year after the determination of the original action or after
the reversal of the judgment.’’
2
To the extent that any issues are nonreviewable, the plaintiff invokes
the plain error doctrine. See Practice Book § 60-5. The plaintiff asserts
that the court’s decision ‘‘violates public policy and manifests injustice.’’
Specifically, the plaintiff claims that the court committed plain error,
resulting in manifest injustice, by (1) ‘‘[i]mposing sanctions on the plaintiff
for reliance on misrepresentations made by the defendant’s counsel’’; (2)
allowing the defendant to ‘‘greatly benefit from ‘the same sauce . . . [that
it] spread on the [plaintiff’s goose]’ despite that it ‘also necessarily graced
his own gander’ ’’; (3) ‘‘[r]equiring the plaintiff to demonstrate sufficient
evidence in support of an essential element of his cause of action prior to
receipt of discovery that he [was] entitled to’’; (4) ‘‘[r]equiring the plaintiff
to produce his expert report based on unknown data, despite that such
essential information was due and owing and being withheld improperly by
the defendant’’; and (5) ‘‘[w]rongfully converting the inapplicability of a § 52-
592 (a) defense to a defense concerning jurisdiction . . . .’’
‘‘It is well established that the plain error doctrine . . . is an extraordinary
remedy used by appellate courts to rectify errors committed at trial that,
although unpreserved [and nonconstitutional in nature], are of such monu-
mental proportion that they threaten to erode our system of justice and
work a serious and manifest injustice on the aggrieved party. [T]he plain
error doctrine . . . is not . . . a rule of reviewability. It is a rule of revers-
ibility. That is, it is a doctrine that this court invokes in order to rectify a
trial court ruling that . . . requires reversal of the trial court’s judgment
. . . for reasons of policy. . . . In addition, the plain error doctrine is
reserved for truly extraordinary situations [in which] the existence of the
error is so obvious that it affects the fairness and integrity of and public
confidence in the judicial proceedings. . . . Plain error is a doctrine that
should be invoked sparingly. . . . Implicit in this very demanding standard
is the notion . . . that invocation of the plain error doctrine is reserved for
occasions requiring the reversal of the judgment under review. . . .
‘‘An appellate court addressing a claim of plain error first must determine
if the error is indeed plain in the sense that it is patent [or] readily [discern-
ible] on the face of a factually adequate record, [and] also . . . obvious in
the sense of not debatable. . . .
‘‘[An appellant] cannot prevail under [the plain error doctrine] . . . unless
he demonstrates that the claimed error is both so clear and so harmful
that a failure to reverse the judgment would result in manifest injustice.’’
(Citations omitted; emphasis in original; footnote omitted; internal quotation
marks omitted.) State v. Jamison, 320 Conn. 589, 595–97, 134 A.3d 560 (2016).
After a thorough review of the record, we are not convinced that the
claimed errors are so clear that they are ‘‘[discernible] on the face of a
factually adequate record’’ or ‘‘obvious in the sense of not debatable.’’ (Inter-
nal quotation marks omitted.) Id., 596. Importantly, many of the claimed
errors appear to pertain to the actions of the court in Estela I, and not those
of the court in the present case. Further, even if the plaintiff had met his
burden of establishing that the error was clear and harmful, he has failed
to demonstrate ‘‘manifest injustice’’ that would permit use of this ‘‘ ‘extraordi-
nary remedy’ . . . .’’ Id., 597. Accordingly, we conclude that the plaintiff
cannot prevail on his claim of plain error.
3
Although § 52-592 (a) was not specifically pleaded in the complaint, the
parties stipulated to the court that it was not necessary under Beckenstein
Enterprises-Prestige Park, LLC v. Keller, 115 Conn. App. 680, 690–91, 974
A.2d 764 (‘‘[w]hile it has been suggested that it might be desirable for the
plaintiff to plead sufficient facts necessary to bring the matter within the
purview of § 52-592 . . . [i]t has been and is the holding of [our Supreme
Court] that matters in avoidance of the Statute of Limitations need not be
pleaded in the complaint but only in response to such a defense properly
raised’’ [internal quotation marks omitted]), cert. denied, 293 Conn. 916, 979
A.2d 488 (2009).
4
General Statutes § 52-205 provides: ‘‘In all cases, whether entered upon
the docket as jury cases or court cases, the court may order that one or
more of the issues joined be tried before the others.’’
5
Practice Book § 15-1 provides: ‘‘In all cases, whether entered upon the
docket as jury cases or court cases, the judicial authority may order that
one or more of the issues joined be tried before the others. Where the
pleadings in an action present issues both of law and of fact, the issues of
law must be tried first, unless the judicial authority otherwise directs. If
some, but not all, of the issues in a cause are put to the jury, the remaining
issue or issues shall be tried first, unless the judicial authority otherwise
directs.’’
6
On August 21, 2015, prior to a final judgment, the plaintiff appealed from
the court’s decision that his action could not be maintained pursuant to
§ 52-592 (a). This court granted the defendant’s motion to dismiss the appeal,
by order dated October 20, 2015, for lack of a final judgment. On December
22, 2015, the plaintiff moved for judgment to be rendered in favor of the
defendant, as the court’s order on the motion to bifurcate so concluded the
rights of the parties that further proceedings could not affect them. On
January 4, 2016, the court rendered judgment in favor of the defendant.
7
General Statutes § 52-577 provides that ‘‘[n]o action founded upon a tort
shall be brought but within three years from the date of the act or omission
complained of.’’
8
General Statutes § 52-597 provides that ‘‘[n]o action for libel or slander
shall be brought but within two years from the date of the act complained of.’’
9
In his principal brief, the plaintiff argues that the present case differs
from Plante v. Charlotte Hungerford Hospital, supra, 300 Conn. 40–41,
because, in Plante, the defendants challenged the applicability of § 52-592
(a) in a motion to dismiss and a motion for summary judgment, before the
issue was ultimately addressed by way of a motion to bifurcate. The plaintiff
argues that the defendant in this matter ‘‘never raised this defense . . . in
its motion for summary judgment . . . .’’ (Citations omitted.) Contrary to
the plaintiff’s assertions, however, the defendant did argue in its motion
for summary judgment that the plaintiff’s claims were time barred by the
applicable statute of limitations. Thus, the plaintiff has failed to demonstrate
how this case is distinguishable from Plante.
10
The plaintiff argues that § 52-592 (a) is a limitation defense, and that
the defendant waived this defense because it did not specifically assert in
its motion for summary judgment that § 52-592 (a) does not apply, but merely
asserted that the claims were time barred. Section 52-592 (a), however, is
not a defense that the defendant must plead; rather, § 52-592 (a) is an
exception to the statute of limitations special defense that allows a plaintiff
to maintain an otherwise time barred action. See Beckenstein Enterprises-
Prestige Park, LLC v. Keller, 115 Conn. App. 680, 690–91, 974 A.2d 764, cert.
denied, 293 Conn. 916, 979 A.2d 488 (2009); see also footnote 3 of this opinion.
11
General Statutes § 52-212 (a) provides in relevant part: ‘‘Any . . . non-
suit 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 reasonable cause from prosecuting the action
or making the defense.’’
12
We recognize that the plaintiff’s counsel did state, at the start of the
August 3, 2015 evidentiary hearing, that ‘‘the issue here is, did the plaintiff
egregiously depart from the obligation to prosecute the case . . . .’’ Follow-
ing that, however, the following colloquy took place:
‘‘The Court: . . . The issue here is a very limited issue: mistake, accident
or reasonable cause.
‘‘[The Plaintiff’s Counsel]: Yes. . . .
‘‘The Court: . . . So, the motion to open nonsuit really doesn’t matter
here, does it? It’s whether or not the nonsuit itself was entered and the
cause of the nonsuit was not, from the defense perspective, mistake, accident
or other reasonable cause?
‘‘[The Plaintiff’s Counsel]: I think that’s correct, Your Honor.
‘‘The Court: Okay. So, we don’t have to deal with the deficiencies in the
motion to open the nonsuit. . . . We only have to get to the reasons or
what was done in an effort to prevent the nonsuit from entering . . . .
‘‘[The Plaintiff’s Counsel]: Yes, Your Honor.
‘‘The Court: So, that’s what we’re limiting this hearing to.
‘‘[The Plaintiff’s Counsel]: You’re correct, Your Honor.
‘‘The Court: That it’s mistake, accident or other reasonable cause.’’
13
In crafting the ‘‘matter of form’’ standard for § 52-592 (a), our Supreme
Court cited to § 52-212 and indicated that ‘‘[§ 52-212] has language resembling
our construction of § 52-592 (a).’’ Ruddock v. Burrowes, supra, 243 Conn.
577 n.13.
14
We also reject the plaintiff’s argument that the court barred ‘‘evidence
on the plaintiff’s conduct that occurred outside of mistake, inadvertence or
reasonable cause, such as excusable neglect.’’ As the court noted in its
memorandum of decision, and as the transcript supports, the plaintiff’s
witness testified at length as to the circumstances in which the discovery
noncompliance occurred. The plaintiff has failed to show how the hearing
was ‘‘limited’’ in any way.
15
In its order denying the plaintiff’s motion to open nonsuit, the court in
Estela I noted: ‘‘The defendant . . . moved for a judgment of nonsuit against
the plaintiff . . . due to his failure to respond to the defendant’s request
for disclosure and production. After careful consideration . . . the court
granted the motion for nonsuit on October 28, 2013. . . . On November 1,
2013, the plaintiff filed a motion to reargue/reconsider the court’s granting of
the nonsuit . . . [which] the court denied . . . on November 18, 2013. . . .
‘‘On November 27, 2013, the plaintiff filed the present motion, motion to
open nonsuit, and on December 2, 2013, the defendant filed its objection.
Thereafter, on December 5, 2013, the plaintiff filed a notice of compliance
(2003–2004 tax returns), and on December 11, 2013, the plaintiff filed a
second notice of compliance (preliminary expert report). . . .
‘‘The [plaintiff’s] motion to open nonsuit was not filed with the appropriate
supporting affidavit, [as required by General Statutes § 52-212a and Practice
Book § 17-42]; therefore, this court is without the authority to set aside the
nonsuit. . . . Even if the court were to consider [the] late fil[ed] affidavit,
the plaintiff failed to establish that ‘a good cause of action . . . existed
. . . at the time of the rendition of the judgment [of nonsuit], and that the
plaintiff . . . was prevented by mistake, accident or other reasonable cause
from prosecuting the action . . . .’ His filing of the notices of compliance
AFTER the filing of the [defendant’s] motion for [a judgment of] nonsuit is
clear indication that he had failed to comply with the written discovery
either at the time of the entry of nonsuit or at the time of the filing of the
motion to open nonsuit. Furthermore, the plaintiff argues that his admitted
noncompliance is due to the fault of either the defendant or a federal agency,
honest mistake, grueling trial schedule, and/or lack of prejudice and/or harm
to the defendant.
‘‘The court finds no merit in the plaintiff’s arguments or explanations.
This is not the first instance of the plaintiff’s failure to comply with written
discovery . . . . Moreover, the plaintiff has admitted in his motion to open
nonsuit that he ‘purposefully held off on continuing his review and analysis
of his own documents to cull out relevant information because he expected
that the request[ed] patient information would be produced by the defendant
. . . .’ The plaintiff has failed to establish . . . that he was prevented from
prosecuting this matter because of ‘mistake, accident or other reasonable
cause.’ ’’ (Citations omitted.)
16
The plaintiff also argued, in essence, in the motion to open the judgment
of nonsuit ‘‘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 produce the requisite patient information, and that the ‘grueling
trial schedule’ of the plaintiff’s attorney was partly responsible for the various
delays at issue.’’ Estela v. Bristol Hospital, Inc., supra, 165 Conn. App.
103–104.
17
During the August 3, 2015 evidentiary hearing, the following colloquy
took place:
‘‘[Attorney Leonhardt]: . . . When I got the motion for nonsuit on [Sep-
tember 26] I called Attorney [Michael G.] Rigg [the defendant’s counsel],
and I don’t recall if I spoke with Attorney Rigg or with Attorney [Amy F.]
Goodusky [cocounsel for the defendant], but they did agree to give us
additional time, and we went through the documents and—
‘‘The Court: And you confirmed it in writing? . . .
‘‘[Attorney Leonhardt]: As best I can recollect, Your Honor, it was not
reduced to writing. . . . [M]y understanding was that we would have addi-
tional time . . . .
‘‘The Court: . . . Should you have relied on Attorney Rigg or Attorney
Goodusky’s representation that they would provide you with these things?
‘‘[Attorney Leonhardt]: No, Your Honor.
‘‘The Court: Okay.
‘‘[Attorney Leonhardt]: That was my mistake.’’
18
Further, as the court commented in a footnote in its memorandum of
decision: ‘‘The pattern of noncompliance with court orders continues from
Estela I to [the present action]. The plaintiff has recently filed two motions
for extension of time nunc pro tunc after failing to comply with this court’s
scheduling deadlines. While this conduct is not directly relevant to the issue
at hand, the plaintiff’s continued dilatory conduct does not reflect positively
on his claim that his failure to comply with the prior court’s orders was
due to his counsel’s reliance on representations made by [the defendant’s]
counsel or impossibility.’’