Speer v. Dept. of Agriculture , 183 Conn. App. 298 ( 2018 )

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SHERI SPEER v. DEPARTMENT OF
AGRICULTURE ET AL.
(AC 39106)
Sheldon, Elgo and Bright, Js.
Syllabus
The plaintiff appealed to the trial court from the final decision of the Commis-
sioner of Agriculture upholding disposal orders regarding the plaintiff’s
two dogs. The plaintiff did not personally appear at the first scheduled
pretrial conference, although her counsel attended and she was available
and reached by telephone during the conference. Following the plaintiff’s
failure to appear, the trial court rendered a judgment of nonsuit. There-
after, the court denied the plaintiff’s motion to open the judgment of
nonsuit, and the plaintiff appealed to this court. Held that the trial court
abused its discretion by denying the plaintiff’s motion to open: pursuant
to statute (§ 52-212) and the relevant rule of practice (§ 17-43), a plaintiff
moving to set aside a judgment of nonsuit must establish that a good
cause of action existed at the time judgment was rendered and that the
plaintiff was prevented from prosecuting the action by mistake, accident
or other reasonable cause, and here, the trial court did not refer to
those requirements when it denied the motion to open but, instead,
relied solely on the plaintiff’s failure to be physically present for the
pretrial conference pursuant to the rule of practice pertaining to pretrial
conferences (§ 14-13), and although the court, for the first time in an
articulation, stated that the plaintiff’s motion to open did not comply
with § 17-43, the plaintiff’s motion to open did satisfy the requirements
of that rule of practice and of § 52-212, as it was verified by oath and
stated the nature of her claim and the reason for her nonappearance
at the pretrial conference; moreover, given that the court’s discretion
should be exercised mindful of the policy preference of bringing about
a trial on the merits of a dispute whenever possible, and that this
matter had been pending for approximately seven weeks when the court
rendered the judgment of nonsuit as a sanction for the plaintiff’s failure
to appear for the first scheduled pretrial conference, the trial court
abused its discretion in denying the plaintiff’s timely motion to open.
Argued March 6—officially released July 10, 2018
Procedural History
Appeal from the decision of the named defendant
affirming disposal orders for the plaintiff’s dogs,
brought to the Superior Court in the judicial district of
New London and transferred to the judicial district of
New Britain, where the court, Hon. George Levine,
judge trial referee, rendered judgment of nonsuit; there-
after, the court denied the plaintiff’s motion to open,
and the plaintiff appealed to this court; subsequently,
the court, Hon. George Levine, judge trial referee,
issued an articulation of its decision. Reversed; fur-
ther proceedings.
Thompson G. Page, for the appellant (plaintiff).
Denise Lillo Vecchio, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Matthew I. Levine, assistant attorney general,
for the appellee (named defendant).
Scott R. Ouellette, for the appellees (defendant city
of Norwich et al.).
Opinion
BRIGHT, J. The plaintiff, Sheri Speer, appeals from
the judgment of the trial court denying her motion to
open the judgment of nonsuit rendered in favor of the
defendants, the Department of Agriculture (depart-
ment), the city of Norwich (city), and Michele Lom-
bardi, an animal control officer employed by the city.
On appeal, the plaintiff claims that the court abused its
discretion in denying her motion to open. We agree
and, accordingly, reverse the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal.1 On October 15, 2013, Lombardi,
pursuant to General Statutes § 22-358, issued a disposal
order to euthanize the plaintiff’s two pit bull dogs after
finding that the dogs had bitten three people. There-
after, on October 17, 2013, the plaintiff appealed Lom-
bardi’s order to the department, and, following an
administrative hearing, the hearing officer for the
department issued a proposed final decision recom-
mending that the Commissioner of Agriculture (com-
missioner) affirm the disposal order to euthanize the
plaintiff’s dogs. On August 5, 2015, the commissioner
issued the final decision affirming the disposal order
pursuant to § 22-358 (c).2
On September 21, 2015, the plaintiff appealed to the
Superior Court from the final decision of the commis-
sioner pursuant to General Statutes § 4-183. On October
29, 2015, the court issued a notice to the parties ordering
that they appear for a pretrial conference on November
16, 2015, at 3:30 p.m. The notice provided in relevant
part: ‘‘If a party is an individual, the party must attend.
. . . Failure to comply with the terms of this order
may result in sanctions, including nonsuit or default.’’
Plaintiff’s counsel appeared on November 16, 2015, but
the plaintiff did not. The plaintiff was available by tele-
phone though, and actually spoke to the court. Never-
theless, on that date, the court rendered a judgment of
nonsuit against the plaintiff ‘‘for failure to be present
at the scheduled pretrial conference, as required in the
pretrial order.’’
On December 9, 2015, after the expiration of the
automatic appellate stay, the plaintiff filed her pro se
appearance and a verified motion to open and set aside
nonsuit, with a verified memorandum of law in support
thereof.3 In her motion to open, the plaintiff claimed
that the court should not have rendered a judgment of
nonsuit because her failure to appear ‘‘was not contu-
macious; [p]laintiff’s counsel was present at the confer-
ence on the scheduled date and at the scheduled time;
and [the] [p]laintiff was at all times available by tele-
phone. See [Practice Book] § 14-13 (nonsuit is available
at a pretrial conference only if the plaintiff ‘fails to
attend or to be available by telephone’). The grounds
for this motion are set forth in greater detail in the
accompanying memorandum of law filed and served
herewith.’’ (Emphasis omitted.)
In the plaintiff’s memorandum of law in support of
her motion to open, she claimed that ‘‘the [c]ourt tele-
phoned [the] [p]laintiff and spoke to her during the
[pretrial conference]. [The] [p]laintiff explained her
absence was due to the fact that she did not recall
receiving notice that she personally had to attend. The
failure was not due to deliberate disregard of a pretrial
order.’’ In addition, the plaintiff set forth the nature of
her cause of action. Specifically, she asserted that she
has standing to pursue the administrative appeal, and
identified her three claims: ‘‘(1) that [the] [d]efendants
have failed to follow the requirements of . . . § 22-358
for dealing with allegedly dangerous dogs; (2) that [the]
[d]efendants have deprived [the] [p]laintiff of proce-
dural and substantive due process; and (3) that [the]
[d]efendants have violated the automatic bankruptcy
stay.’’
The court, without holding a hearing, issued an order
denying the plaintiff’s motion to open on December 11,
2015. The entirety of the court’s order is as follows:
‘‘Practice Book § 14-13 requires parties to attend a pre-
trial. The only person who can be ‘available by tele-
phone’ is an insurance adjuster.’’ Thereafter, on
December 31, 2015, the plaintiff filed a motion for rear-
gument and reconsideration of the court’s denial, pursu-
ant to Practice Book § 11-12, and the court held a
hearing on that motion on March 24, 2016. At the hear-
ing, counsel appeared for the plaintiff, but the plaintiff
did not appear. After the hearing, on that same date,
the court granted the plaintiff’s motion for reargument
and reconsideration, but denied the relief requested
therein. This appeal followed.
Because the plaintiff filed her motion to open and
set aside nonsuit after the automatic appellate stay had
expired, the sole issue on appeal is whether the trial
court abused its discretion in denying her motion to
open the judgment of nonsuit. See Oliphant v. Heath,
170 Conn. App. 360, 363, 154 A.3d 582, cert. denied, 325
Conn. 921, 163 A.3d 620 (2017).
Following oral argument before this court, we, sua
sponte, ordered the trial court ‘‘to articulate the factual
and legal bases for the court’s denial of the plaintiff’s
December 7, 2015 verified motion to open and set aside
nonsuit . . . .’’4 On April 6, 2018, the court issued its
articulation. It stated, in relevant part: ‘‘As to the plain-
tiff’s motion to open and set aside nonsuit, the motion:
(a) does not state reasonable cause for plaintiff’s failure
to attend the pretrial, (b) does not state that she had
a good cause of action, (c) does not state the plaintiff
was prevented by mistake, accident or other reasonable
cause from appearing, and (d) does not state particu-
larly the nature of her claim. Because the motion does
not comply with any of the requirements of [Practice
Book] § 17-43 for opening and setting aside a nonsuit,
the motion was denied.’’5
It is well established that we review a court’s decision
to grant or deny a motion to open a judgment of nonsuit
for a clear abuse of discretion. See Tsitaridis v. Tsitar-
idis, 100 Conn. App. 115, 118, 916 A.2d 877 (2007). ‘‘The
court’s discretion, however, is not unfettered; it is a
legal discretion subject to review. . . . [D]iscretion
imports something more than leeway in decision-mak-
ing. . . . It means a legal discretion, to be exercised
in conformity with the spirit of the law and in a manner
to subserve and not to impede or defeat the ends of
substantial justice. . . . In addition, the court’s discre-
tion should be exercised mindful of the policy prefer-
ence to bring about a trial on the merits of a dispute
whenever possible and to secure for the litigant his day
in court.’’ (Citation omitted; internal quotation marks
omitted.) Multilingual Consultant Associates, LLC v.
Ngoh, 163 Conn. App. 725, 735, 137 A.3d 97 (2016); see
also Bridgeport v. Grace Building, LLC, 181 Conn. App.
280, 298–99, A.3d (2018).
General Statutes § 52-212 and Practice Book § 17-
6
43 set forth the requirements for a motion to open a
judgment of nonsuit. A plaintiff moving to set aside a
judgment of nonsuit must establish that (1) a good cause
of action existed at the time judgment was rendered,
and (2) the plaintiff was prevented from prosecuting
the action by mistake, accident or other reasonable
cause. Estela v. Bristol Hospital, Inc., 165 Conn. App.
100, 108, 138 A.3d 1042, cert. denied, 323 Conn. 904,
150 A.3d 681 (2016); see also General Statutes § 52-
212 (a).
In the present case, the court denied the plaintiff’s
motion to open, but did not refer to the requirements
under § 52-212 or Practice Book § 17-43. Instead, it
relied solely on the plaintiff’s failure to comply with
Practice Book § 14-13, by not being physically present
for the pretrial conference. Then, in its articulation, the
court stated for the first time that it denied the plaintiff’s
motion to open because it did not comply with any
of the requirements under Practice Book § 17-43. Our
review of the plaintiff’s motion to open, however,
reveals that it did, in fact, satisfy all of the requirements
under § 52-212 and Practice Book § 17-43.
In her motion to open, which was verified by oath,
the plaintiff specifically stated that ‘‘[t]he grounds for
this motion are set forth in greater detail in the accom-
panying memorandum of law filed and served here-
with.’’ In the accompanying memorandum of law in
support of her motion to open, which also was verified
by oath, the plaintiff claimed that she did not recall
receiving notice of the pretrial conference and that she
did not know that she needed to attend the pretrial
conference. The plaintiff set forth the nature of her
claim, asserting that she had standing to bring the
administrative appeal and identifying her specific
claims of error regarding the administrative proceeding.
Accordingly, the plaintiff’s written motion to open satis-
fied the statutory requirements because it was verified
by oath, stated the nature of her claim and the reason
for her nonappearance at the pretrial conference. See
General Statutes § 52-212 (b) (‘‘[t]he . . . written
motion shall be verified by the oath of the complainant
or his attorney, shall state in general terms the nature
of the claim . . . and shall particularly set forth the
reason why the plaintiff or defendant failed to appear’’).
Consequently, the court, in denying the plaintiff’s
motion to open, improperly concluded that the motion
to open did not satisfy the statutory requirements under
§ 52-212.
Furthermore, under the circumstances of this case,
we cannot conclude that the court properly exercised
its discretion. The plaintiff brought this administrative
appeal from the commissioner’s final decision affirming
the disposal order to euthanize the plaintiff’s two pit bull
dogs. The matter had been pending for approximately
seven weeks when the court rendered the judgment of
nonsuit as a sanction for the plaintiff’s failure to appear
for a pretrial conference on November 16, 2015, which
was the first time the matter had been calendared. The
plaintiff timely filed a motion to open, which satisfied
the requirements under § 52-212 and Practice Book § 17-
43. Considering that ‘‘the court’s discretion should be
exercised mindful of the policy preference to bring
about a trial on the merits of a dispute whenever possi-
ble and to secure for the litigant his day in court’’;
(internal quotation marks omitted) Multilingual Con-
sultant Associates, LLC v. Ngoh, supra, 163 Conn. App.
735; we are persuaded that the court abused its discre-
tion in denying the plaintiff’s motion to open.7
The judgment is reversed and the case is remanded
with direction to grant the plaintiff’s motion to open
the judgment of nonsuit and for further proceedings
according to law.
In this opinion the other judges concurred.
1
We note that the administrative record was not filed in the trial court
and is not part of the record on appeal. Accordingly, our brief summary of
the facts giving rise to the plaintiff’s administrative appeal is based solely
on the allegations in the plaintiff’s complaint and the certified list of papers
filed by the department. See Practice Book § 14-7A (b) (‘‘the agency shall
file with the court and transmit to all parties a certified list of the papers
in the record’’).
2
‘‘Administrative hearings to consider appeals of disposal orders issued
pursuant to § 22-358 (c) are conducted in accordance with the Uniform
Administrative Procedure Act . . . General Statutes § 4-166 et seq.; and
the department rules of practice, specifically, §§ 22-7-20 through 22-7-38 of
the Regulations of Connecticut State Agencies. Pursuant to General Statutes
§ 4-176e, hearings in contested cases in agency proceedings may be con-
ducted before a hearing officer, who, pursuant to General Statutes § 4-
179, renders a written, proposed final decision to the commissioner. After
affording each party adversely affected by the proposed final decision an
opportunity to file exceptions and present briefs and oral argument pursuant
to § 4-179 (a), the commissioner is vested with the authority to render the
final decision in matters involving disposal orders under § 22-358 (c).’’ Miller
v. Dept. of Agriculture, 168 Conn. App. 255, 258 n.3, 145 A.3d 393, cert.
denied, 323 Conn. 936, 151 A.3d 386 (2016).
3
There are two separate verification pages.
4
The plaintiff’s verified motion to open and set aside nonsuit is dated
December 7, 2015, but it was filed on December 9, 2015.
5
The court also stated: ‘‘Because the plaintiff knew she was required to
attend the pretrial, but chose not to do so, a nonsuit was entered.’’ The
court cited to the transcript of the hearing on March 24, 2016, where the
court asked the plaintiff’s counsel if the plaintiff knew that her presence
was required at the pretrial conference and he responded: ‘‘My interpretation
of notices and everything was that, yes.’’ That acknowledgment thus appears
to be predicated not on firsthand knowledge, but rather an inference counsel
drew from the notice issued by the court.
6
General Statutes § 52-212 provides in relevant part: ‘‘(a) Any judgment
rendered . . . upon a default or nonsuit in the Superior Court may be set
aside, within four months following the date on which it was rendered . . .
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 . . .
and that the plaintiff or defendant was prevented by mistake, accident or
other reasonable cause from prosecuting the action or making the defense.
‘‘(b) The complaint or written motion shall be verified by the oath of the
complainant or his attorney, shall state in general terms the nature of the
claim or defense and shall particularly set forth the reason why the plaintiff
or defendant failed to appear. . . .’’
Practice Book § 17-43 (a) contains nearly identical language, but differs
in that it provides that a judgment may be set aside within four months
‘‘succeeding the date on which notice was sent . . . .’’
7
In addition, we question the trial court’s reliance on Practice Book § 14-
13 when it denied the plaintiff’s motion to open. Section 14-13, which is
titled ‘‘Pretrial Procedure’’ and applies generally to civil matters, provides
that several issues shall be considered at a pretrial session, the first of
which is the possibility of settlement. Practice Book § 14-7 (d), however,
specifically provides that ‘‘[a]dministrative appeals are not subject to the
pretrial rules, except as otherwise provided in Sections 14-7A and 14-7B.’’
Practice Book § 14-7A (d), which applies to the present case and all adminis-
trative appeals brought pursuant to § 4-183 et seq., provides for a conference
where the court and the parties will ‘‘establish which of the contents of the
record are to be transmitted and . . . set up a scheduling order, including
dates for the filing of the designated contents of the record, for the filing
of appropriate pleadings and briefs, and for conducting appropriate confer-
ences and hearings.’’ Accordingly, a conference pursuant to § 14-7A (d) is
intended to address administrative issues, and a client ordinarily would not
be required to attend such a conference. Practice Book § 14-7B (c) also
provides for a conference to address administrative issues, and § 14-7B (j)
requires that certain administrative appeals may only be settled with the
approval of the court. That, of course, is not true for the vast majority of
cases that have pretrial conferences pursuant to § 14-13, where the parties
are free to settle their claims without court approval. Neither § 14-7A nor
§ 14-7B require that the parties attend a § 14-13 pretrial session.
The structure of the Practice Book in this regard makes sense because
a conference pursuant to § 14-7A (d) generally is better suited for administra-
tive appeals than the pretrial conference called for by § 14-13. In fact, this
case is a perfect illustration of why the procedure outlined in § 14-13 is ill-
suited for many administrative appeals. Here, the trial court clearly viewed
the primary purpose of the pretrial conference as trying to settle the case;
yet it was extremely unlikely that the parties were going to negotiate a
settlement of the commissioner’s disposal order to euthanize the plaintiff’s
two dogs. Instead, a conference pursuant to § 14-7A (d), which would not
have required the presence of the clients, would have made more sense.
Having said this, we in no way mean to suggest that parties to an administra-
tive appeal are free to ignore a court order to appear at a pretrial conference
scheduled pursuant to § 14-13. Instead, we take this opportunity to suggest
that trial judges consider whether the circumstances of a particular adminis-
trative appeal justify the scheduling of a § 14-13 pretrial conference, and
whether a party should be sanctioned for his or her inability to attend or
honest error in not attending such a conference. See, e.g., Faile v. Stratford,
177 Conn. App. 183, 211, 172 A.3d 206 (2017) (‘‘[a] dismissal or a nonsuit
as a sanction for the failure of [the plaintiff] to attend [a pretrial conference]
when he was ill and in the hospital does not serve justice or in any way
vindicate the legitimate interests of the other party and the court’’ [internal
quotation marks omitted]).